03/01/2004 01:10 PM House JUD
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 1, 2004
1:10 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 451
"An Act relating to therapeutic courts; and providing for an
effective date."
- MOVED HB 451 OUT OF COMMITTEE
HOUSE CONCURRENT RESOLUTION NO. 29
Relating to support for therapeutic courts for repeat driving
while under the influence offenders.
- MOVED HCR 29 OUT OF COMMITTEE
HOUSE BILL NO. 468
"An Act relating to the amount of the bond required to stay
execution of a judgment in civil litigation involving a
signatory, a successor of a signatory, or an affiliate of a
signatory to the tobacco product Master Settlement Agreement
during an appeal; amending Rules 204 and 205, Alaska Rules of
Appellate Procedure; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 385
"An Act relating to awarding child custody; and providing for an
effective date."
- MOVED CSHB 385(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 342
"An Act relating to driving while intoxicated; and providing for
an effective date."
- MOVED CSHB 342(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 334
"An Act relating to unlawful exploitation of a minor."
- BILL HEARING POSTPONED TO 3/3/04
PREVIOUS COMMITTEE ACTION
BILL: HB 451
SHORT TITLE: THERAPEUTIC COURTS
SPONSOR(S): RULES BY REQUEST
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD, FIN
03/01/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HCR 29
SHORT TITLE: SUPPORT THERAPEUTIC COURTS
SPONSOR(S): REPRESENTATIVE(S) HEINZE
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD
03/01/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 468
SHORT TITLE: APPEAL BONDS: TOBACCO SETTLEMENT PARTIES
SPONSOR(S): LABOR & COMMERCE
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD
03/01/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 385
SHORT TITLE: AWARDING CHILD CUSTODY
SPONSOR(S): REPRESENTATIVE(S) MCGUIRE
01/20/04 (H) READ THE FIRST TIME - REFERRALS
01/20/04 (H) JUD
02/25/04 (H) JUD AT 1:00 PM CAPITOL 120
02/25/04 (H) <Bill Hearing Postponed>
02/27/04 (H) JUD AT 1:00 PM CAPITOL 120
02/27/04 (H) <Bill Hearing Postponed>
03/01/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 342
SHORT TITLE: INCREASE DRIVING UNDER INFLUENCE PENALTY
SPONSOR(S): REPRESENTATIVE(S) GATTO
01/12/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) JUD
02/02/04 (H) JUD AT 1:00 PM CAPITOL 120
02/02/04 (H) Heard & Held
02/02/04 (H) MINUTE(JUD)
02/04/04 (H) JUD AT 1:00 PM CAPITOL 120
02/04/04 (H) -- Meeting Canceled --
02/09/04 (H) JUD AT 1:00 PM CAPITOL 120
02/09/04 (H) <Bill Hearing Postponed>
02/20/04 (H) JUD AT 1:00 PM CAPITOL 120
02/20/04 (H) Heard & Held
02/20/04 (H) MINUTE(JUD)
02/27/04 (H) JUD AT 1:00 PM CAPITOL 120
02/27/04 (H) Heard & Held
02/27/04 (H) MINUTE(JUD)
03/01/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Presented HB 451 on behalf of the ACS.
LEONARD R. DEVANEY III, Judge
4th Judicial District Bethel
Superior Court
Alaska Court System (ACS)
Bethel, Alaska
POSITION STATEMENT: During discussion of HB 451, encouraged the
committee to support continued funding of therapeutic courts.
STEPHANIE E. JOANNIDES, Judge
3rd Judicial District Anchorage
Superior Court
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 451, related the
success she has observed in Anchorage's therapeutic court.
LINDA WILSON, Deputy Director
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 451.
JON BITTNER, Staff
to Representative Cheryll Heinze
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HCR 29 on behalf of the sponsor,
Representative Heinze.
JANET McCABE, Chair
Partners for Progress
Anchorage, Alaska
POSITION STATEMENT: During discussion of HCR 29, reviewed the
success of the Anchorage Wellness Court.
KEITH A. TEEL, Attorney
Co-Chair, Legislative Practice Group
and Chair, Tobacco Practice Group
Covington & Burling
Washington, DC
POSITION STATEMENT: Assisted with the presentation of HB 468
and responded to questions.
JENNIFER APP, Alaska Advocacy Director
American Heart Association
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 468,
suggested some alternative language, and responded to questions.
EMILY NENON, Alaska Advocacy Director
American Cancer Society (ACS)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 468 provided
comments and responded to a question.
PAIGE HODSON
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 385, related her
personal experience which led her to bring this issue to Chair
McGuire, sponsor.
ALLEN M. BAILEY, Attorney at Law
Anchorage, Alaska
POSITION STATEMENT: Speaking as a family law attorney and the
Vice-Chair of the American Bar Association's Family Law Section
Domestic Violence Committee, urged the committee to pass
[Version Q of HB 385].
TRACY GOULD
Anchorage, Alaska
POSITION STATEMENT: Testified that HB 385 would be valuable
toward changing these [friendly parent] laws.
KIMBERLEE VANDERHOOF, Program Director
Careline Crisis Intervention
Fairbanks, Alaska
POSITION STATEMENT: Urged the committee to pass HB 385.
GIGI PILCHER
Ketchikan, Alaska
POSITION STATEMENT: Requested that the committee pass HB 385.
ROSITA TWAIM
Ketchikan, Alaska
POSITION STATEMENT: During discussion of HB 385, relayed that
the laws should be changed to protect children.
DENNIS L. McCARTY, Attorney at Law
Ketchikan, Alaska
POSITION STATEMENT: Testified on HB 385.
KERRY RASMUSSEN
Ketchikan, Alaska
POSITION STATEMENT: Expressed hope that HB 385 would pass.
LANETTA LUNDBURG
Ketchikan, Alaska
POSITION STATEMENT: Her testimony that HB 385 is very important
and needs to be closely reviewed was read by Jessica Stone.
CHRISTINE McLEOD PATE, Mentoring Attorney
Alaska Network on Domestic Violence and Sexual Assault (ANDVSA)
Sitka, Alaska
POSITION STATEMENT: Thanked the committee for allowing her to
speak in favor of HB 385.
ALVIN CARR
Ketchikan, Alaska
POSITION STATEMENT: Congratulated the committee for its efforts
on HB 385.
LAURIE BROWNLEE, court-appointed special advocate (CASA)
(No address provided)
POSITION STATEMENT: Testified in support of HB 385.
CODY RICE, Staff
to Representative Carl Gatto
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Offered comments and responded to questions
during discussion of HB 342 on behalf of the sponsor,
Representative Gatto.
ACTION NARRATIVE
TAPE 04-30, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:10 p.m. Representatives
McGuire, Anderson, Holm, Ogg, Samuels, Gara, and Gruenberg were
present at the call to order.
HB 451 - THERAPEUTIC COURTS
Number 0088
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 451, "An Act relating to therapeutic courts;
and providing for an effective date."
Number 0092
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), explained that HB 451 was introduced by the House Rules
Standing Committee by request of the ACS. Mr. Wooliver
paraphrased portions of the written sponsor statement, which
read in part [original punctuation provided]:
HB 451 extends the termination dates for two pilot
therapeutic court programs until after a planned study
of those courts has been completed and reviewed by the
legislature. The bill also removes a sunset clause on
the Anchorage superior court judge position that was
added, in part, to administer one of those therapeutic
courts.
In 2001 the legislature passed HB 172, which
established felony-level therapeutic courts in
Anchorage and Bethel. Each court was set up as a
pilot program scheduled to run for three years. The
Anchorage court admits those with a felony conviction
for driving under the influence of an alcoholic
beverage, inhalant, or controlled substance (DUI).
The Bethel court admits those convicted of either
felony DUI or certain felony drug offenses. The
findings section of HB 172 explained the purposes of
these courts:
The purposes of therapeutic courts are lasting
sobriety of offenders, protection of society from
alcohol-related and drug-related crime, prompt
payment of restitution to victims of crimes,
effective interaction and use of resources among
criminal justice and community agencies, and
long-term reduction of costs relating to arrest,
trial, and incarceration.
MR. WOOLIVER pointed out that these two felony DUI courts were
largely modeled after the pioneering work done by Judge James N.
Wanamaker, Anchorage District Court, who has a misdemeanor
wellness court that deals with misdemeanant alcohol defenders.
This therapeutic court grew out of a trial judge's frustration
with a system that doesn't work for those with significant
alcohol abuse problems. Mr. Wooliver said that Judge Wanamaker
has had a great deal of success with his wellness court, adding
that the desire of Judge Wanamaker and Brian Porter, former
Speaker of the House of Representatives, was to determine
whether the success at the misdemeanant level could be
replicated at the felony level.
Number 0301
MR. WOOLIVER returned to the sponsor statement and paraphrased
the following portions of it [original punctuation provided]:
In order to determine the effectiveness of these
courts the Judicial Council was charged with
evaluating them and publishing a study for legislative
review. Unfortunately, both the Anchorage and Bethel
programs sunset long before the evaluation is
scheduled to be completed and, because the report is
to be published in July, many months more before the
legislature has an opportunity to review that
evaluation. If the legislature looks at the
evaluation study and decides that the programs should
continue, it will be too late; both programs would
have ended more than a year earlier.
In order to fix this problem, HB 451 extends the
termination date of the pilot programs until after the
legislature has had an opportunity to review their
effectiveness.
House Bill 451 also removes a sunset clause in HB 172
that will terminate the Anchorage superior court judge
position that was added by that bill. The new judge
was necessary not only to do the work of the
therapeutic court but also to help absorb the growing
felony caseload in Anchorage. The sunset clause will
take effect this summer at the same time the
therapeutic court program is scheduled to end. Not
only will that mean the end of the felony therapeutic
court, it will also mean that Anchorage will have one
less judge for other superior court work. The
therapeutic court judge in Anchorage spends most of
her time on general superior court work unrelated to
therapeutic court cases. If we lose the judicial
position it will impact all superior court cases in
Anchorage.
The loss of a superior court judge in Anchorage will
return us to the number of judges initially
established in 1984. Since that time the felony
caseload in Anchorage has increased approximately
100%. We simply cannot afford to lose a superior
court position in Anchorage and to return to a level
of judicial coverage that was appropriate 20 years
ago.
Number 0540
LEONARD R. DEVANEY III, Judge, 4th Judicial District Bethel,
Superior Court, Alaska Court System (ACS), informed the
committee that he spends approximately 80 percent of his time
dealing with the general superior court caseload. He noted that
the Bethel judicial district is the third highest in the state
with regard to the number of trials. Judge Devaney noted that
his court, which started in June 2002, has had 55 people enter
the program, seven of which are to graduate [soon] and another
seven are expected to graduate June 1st. The court has
experienced wonderful success. About 100 percent of the cases
involve alcohol or drugs, he noted. Judge Devaney showcased a
recent 65-year-old graduate who had 11 DUIs, three misdemeanor
assaults, one felony assault, a couple of criminal trespasses,
and a few disorderly conducts. This gentleman has remained
sober for two years now and is working. Judge Devaney concluded
by encouraging the committee to support continued funding so
that the courts can determine whether the therapeutic courts are
as successful as is believed.
Number 0716
STEPHANIE E. JOANNIDES, Judge, 3rd Judicial District Anchorage,
Superior Court, Alaska Court System (ACS), encouraged committee
members to observe these therapeutic courts. She highlighted
that judges, prosecutors, and defense attorneys throughout
Alaska are constantly frustrated by recidivism. The therapeutic
courts are actually working, she related. Across the country
there are over 1,000 drug courts, after which the therapeutic
courts are modeled, in operation. The results in Alaska are
consistent with those in the Lower 48. Judge Joannides related
that in Anchorage's therapeutic court, she has seen mothers
reunited with their children and pregnant women not drinking
during their pregnancy. She recalled that about two-thirds of
those in her program are repeat felony offenders. "I could go
on and on about the successes and the fact that these courts are
really rebuilding the lives of people who have very little
hope," she said.
Number 0934
LINDA WILSON, Deputy Director, Public Defender Agency (PDA),
Department of Administration (DOA), announced support for HB
451. She said she believes it's important to continue the two
[therapeutic courts] until the results of the study are
available. Ms. Wilson assured the committee that therapeutic
courts aren't an easy way for defendants because a lot of work
and commitment is required of the defendant. Ms. Wilson
reiterated support for HB 451, adding that [the PDA] supports
therapeutic courts in general.
Number 1030
REPRESENTATIVE ANDERSON moved to report HB 451 out of committee
with individual recommendations and the accompanying fiscal
note. There being no objection, HB 451 was reported from the
House Judiciary Standing Committee.
HCR 29 - SUPPORT THERAPEUTIC COURTS
Number 1055
CHAIR McGUIRE announced that the next order of business would be
HOUSE CONCURRENT RESOLUTION NO. 29, Relating to support for
therapeutic courts for repeat driving while under the influence
offenders.
Number 1067
JON BITTNER, Staff to Representative Cheryll Heinze, Alaska
State Legislature, presented HCR 29 on behalf of the sponsor,
Representative Heinze, as follows:
Alcoholism in Alaska is a serious and immediate
problem. Conventional methods of dealing with repeat
offenders under the influence of alcohol aren't
effective and are prohibitively expensive.
The largest supplier of mental health care in America
today is the correctional system. This is both
ineffective and expensive. People with substance
abuse problems aren't going to be cured or helped by
locking them away with few if any treatment options
and then releasing them after they've served their
time. The average cost of traditional incarceration
is roughly $113 per person per day. Over an 18-month
period, which is the length of the wellness court's
treatment program, that adds up to over $60,000.
Compare that with the daily cost of the wellness court
which is about $22 per day or roughly $11,000 over the
18-month treatment period, about half of which is paid
by the state. You see a savings of around $50,000 per
offender.
The best way we have of treating people with
addictions are therapeutic courts. While the alcohol-
related recidivism rate for a conventional
incarceration of alcohol and drug abusers is somewhere
around 67 percent nationwide, the recidivism rate of
wellness court graduates is about 25 percent. This
disparity in success rates is attributed to the use of
Naltrexone, a drug that inhibits alcohol cravings,
coupled with community-based treatment programs and
cognitive-behavioral therapy. In order to treat
someone with an addiction, you have to treat the
cause. To be most effective, the community as a whole
must be involved.
House Concurrent Resolution 29 asks that the
legislature show its support for therapeutic courts'
effectiveness in dealing with [driving under the
influence (DUI)] crime. It also asks the Department
of Law and the Public Defender Agency to actively
participate in the startup of therapeutic courts in
areas with high instances of DUI offenders where there
is local support for therapeutic courts. Therapeutic
courts are effective, comparatively inexpensive, and
easy to implement. I urge your support of HCR 29.
Number 1175
JANET McCABE, Chair, Partners for Progress, announced support
for HCR 29 as well as for all therapeutic courts. She noted
that the committee packet should include the 2003 update on the
Anchorage wellness court run by Judge James N. Wanamaker. There
is three years of data compiled by the Justice Center [College
of Health & Social Welfare] at the University of Alaska
Anchorage. This data illustrates that the [Anchorage] wellness
court reverses the pattern typical of those who are sent to jail
or treated in the traditional manner. In Anchorage, 75 percent
of the those [charged with] felony driving under the influence
(DUI) are likely to reoffend and return to jail. The
aforementioned is an expensive cycle. However, 75 percent of
those who have graduated three years ago from the [Anchorage
wellness court] have been successful with avoiding recidivism.
Furthermore, of the 13 graduates in 2003, none have reoffended.
Ms. McCabe noted that those [who participate in the Anchorage
wellness court] are the core repeat offenders for DUI.
MS. McCABE informed the committee that the Anchorage wellness
court is a tough program. Participants in the program have to
remain alcohol- and drug-free for 18 months, during which the
Anchorage Police Department (APD) monitors them with a bracelet
that tests the blood for alcohol. Furthermore, participants
take Naltrexone, which quells the craving for alcohol initially.
Therefore, participants are able to stop thinking about drinking
and actively participate in treatment. The participants are
kept busy with the Alcoholics Anonymous (AA) meetings, meetings
with others taking Naltrexone, and various other meetings. "By
the end of 18 months, they are genuinely changed people," she
said. Ms. McCabe said this program produces better citizens and
saves the public money. She noted that half of the cost of the
program is paid for by the participant, which is viewed as part
of the therapy.
Number 1488
REPRESENTATIVE ANDERSON moved to report HCR 29 out of committee
with individual recommendations and the accompanying zero fiscal
note. There being no objection, HCR 29 was reported from the
House Judiciary Standing Committee.
HB 468 - APPEAL BONDS: TOBACCO SETTLEMENT PARTIES
Number 1524
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 468, "An Act relating to the amount of the bond
required to stay execution of a judgment in civil litigation
involving a signatory, a successor of a signatory, or an
affiliate of a signatory to the tobacco product Master
Settlement Agreement during an appeal; amending Rules 204 and
205, Alaska Rules of Appellate Procedure; and providing for an
effective date."
Number 1528
REPRESENTATIVE ANDERSON, speaking as chair of the House Labor
and Commerce Standing Committee, sponsor of HB 468, said that
the tobacco Master Settlement Agreement ("MSA") is vitally
important to Alaska and to the other 45 states who are parties
to that settlement. It delivers millions of dollars in revenues
to Alaska annually, and will continue to do so for years to
come. However, the continued receipt of these funds is
threatened by the huge judgments being awarded against the
tobacco companies funding the settlement. Defendants facing
such judgments almost always have a right to appeal and, in may
cases, their appeals are successful in obtaining a reduced
judgment or in overturning the judgment entirely. But in order
to stay the execution of a money judgment on appeal, a defendant
must post a supersedeas - or "appeal" - bond, which, in the
diminishing number of states not having limits on appeal bonds,
usually equals the amount of the judgment. In Alaska, the bond
required is ordinarily the amount of the judgment remaining
unsatisfied, plus appeal costs and interest. But Alaska courts
are permitted to set the bond in a different amount for good
cause shown, meaning judges may set the bond at an amount
exceeding the total judgment.
REPRESENTATIVE ANDERSON went on to say that if a company cannot
afford to post a bond in the amount set by the court, the end
result is that the company may be forced to file for bankruptcy
- which carries with it an automatic stay of the debtor's
obligation to pay its creditors - in order to stop the plaintiff
from taking its assets during the appeal. Such a stay could
disrupt payments by the company, including payments to Alaska
and the other states under the MSA. This problem has been most
vividly demonstrated by the ongoing [Engle v. R.J. Reynolds
Tobacco Company] case in Florida, in which a class of smokers
was awarded $145 billion in punitive damages. Had there not
been an appeal-bond cap in place at that time, the defendant
tobacco companies would clearly have gone bankrupt, resulting in
the termination of all MSA settlement payments nationwide, and
precluding the ability to pursue a fair and orderly appeal.
However, because Florida had previously enacted bond-cap
legislation, the settlement payments continued during the
appeal, and the appellate court ultimately rejected and reversed
the verdict in its entirety.
Number 1669
REPRESENTATIVE ANDERSON remarked that to date, 26 states have
recognized the possibility of enormous appeal bonds causing
signatory companies to be unable to meet their obligations to
the states under the MSA, and these states have passed
legislation or amended court rules to limit the size of the
required bond in cases involving large judgments. In addition,
5 other states do not require a defendant to post a bond at all
during an appeal. Some states have passed legislation applying
broadly to all litigants, while other states have passed more
limited legislation applying only to MSA signatories,
successors, and affiliates. The bond limits range from $1
million to $150 million. Nearly all of the statutes include a
provision allowing for a higher bond amount, up to the full
value of the judgment, if the court determines that the
appellant is dissipating assets to avoid paying a judgment.
REPRESENTATIVE ANDERSON said that HB 468 imposes a limit of $25
million on the supersedeas bond that MSA signatories,
successors, and affiliates must post to stay the execution of a
judgment in Alaska. This bond limit would not change any other
aspect of the law - for example, the rules by which the trial is
conducted, or who ultimately wins or loses the lawsuit - or
affect the rights of the plaintiffs to recover the full damages
to which they are entitled if the judgment is upheld on appeal.
Plaintiffs are also protected by the provision in the proposed
legislation that allows the court to require a bond amount up to
the value of the judgment if the appellant is dissipating its
assets to avoid paying a judgment. House Bill 468 would not,
therefore, injure plaintiffs in any way, and it would protect
the state by ensuring it will continue to receive its MSA
payments while the tobacco companies fully appeal any adverse
judgment. In conclusion, he noted that the Senate Judiciary
Standing Committee has reported the companion bill out of
committee.
REPRESENTATIVE GRUENBERG noted the presence of a typo on page 1,
line 7; it currently refers to AS 43.53 but it should instead
refer to AS 45.53. He suggested that the drafter correct that
error.
CHAIR McGUIRE indicated that there would be a technical
amendment to fix that error.
Number 1801
KEITH A. TEEL, Attorney, Co-Chair, Legislative Practice Group,
and Chair, Tobacco Practice Group, Covington & Burling, noted
that he has been involved "in this effort around the country"
for the last three or four years. He said:
I represent the four original tobacco companies that
signed the Master Settlement Agreement with Alaska and
the other states. And those companies are Philip
Morris [Incorporated]; Lorillard Tobacco Company;
Brown & Williamson Tobacco Corporation; and R.J.
Reynolds Tobacco Company. Those companies are quite
interested in trying to ensure that the MSA, the
Master Settlement Agreement, continues in force - that
nothing happens to mess it up, frankly. And that may
sound a little strange because they were sued by a lot
of states and, ... under this agreement, they're
required to pay a lot of money. But frankly, having
lived through the experience, the companies really
believe ... it's a better world, with these payments
being made and the obligations they made under the
[MSA] being honored, than a situation where the states
are all suing the industry.
And so ... my clients would very much like to live up
to their obligations under the [MSA]. ... For us, this
is about the catastrophic situation where a piece of
litigation just gets so ... out of control that it
produces a verdict that is impossible or at least next
to impossible to bond, to post an appeal bond. And
while that sounds a little farfetched, it indeed
(indisc. - coughing) in the last four years of this
industry. Once was in a case called Engle, down in
Florida, in 2000, that resulted in a verdict of $145
billion, and under the then-existing law in Florida,
the companies would have been required to post an
appeal bond of $181 billion, which is simply not
possible; there is not a commercial market more than
about $10 billion in the world, total, for appeal
bonds, and the most any one company could get in the
way of a commercial appeal bond is perhaps $2 billion.
Number 1925
MR. TEEL continued:
So there's simply not a market for appeal bonds of
[this] size. (Indisc.) that judgment, as was noted,
was completely reversed last May and went away, but
had the companies been required to post an appeal bond
under the previously existing Florida law, they would
have been forced to seek a stay through some other
means than posting a bond. And the only other way we
know of is to declare bankruptcy, and the problem with
a bankruptcy filing is that it does produce an
automatic stay of all payment obligations but it's
indiscriminate; it wouldn't just prevent us from
having to pay a judgment while we appeal, it would
prevent us from being able to make payments under the
[MSA]. And that would ... present a serious problem
for all the states in this country that rely, for a
lot of different budgetary reasons, on these funds.
As a result of that concern, the Florida legislature
chose to (indisc. - paper rustling) limit of a $100
million, and that allowed the companies to post a bond
and to go ahead and appeal. Last year, the other case
arose, which was in Illinois, and that case resulted
in a judgment of $10.1 billion. It was a consumer
fraud case; there was all sorts of evidence that was
put into the case that suggested that the companies
had mislead the public in saying that ... so-called
"light" cigarettes - low tar and nicotine cigarettes -
are safe, and the contention of the plaintiffs was
that they were not, or not any safer than regular
cigarettes.
And in that case, which was tried not to a jury but to
a judge, the judge ordered $10.1 billion and then
ordered that a $12 billion bond be posted, under
Illinois law, in order to prevent the plaintiffs from
executing while the defendants sought to appeal the
judgment. What happened next was a lengthy dispute
that at one point involved 37 attorneys general from
other states, including Alaska, filing a petition with
the courts in Illinois saying, "Please allow a lower
bond." And it ultimately got to the state supreme
court before the supreme court allowed (indisc. -
coughing) $6.8 billion. Still a mammoth amount and
something that could not be repeated. So that's the
history here. There are two cases, that but for, in
the one, the legislature reducing the bond, and, in
the other, the company somehow scraping together the
ability to post a $6.8 billion bond, there would have
been a bankruptcy situation.
Number 2021
MR. TEEL went on to say:
And that bankruptcy would have stopped payments in
those states under the [MSA] and in every other state
under the [MSA]. The stay, as I say, is
indiscriminate. This background ... probably should
be augmented by just talking for a minute about what
appeal bonds are for anyway. Appeal bonds are a
creature of, really, a long history in the United
States; they've been around, in some states, since the
early 1800s. And ... frankly, when I think of appeal
bonds, I think of a time when Abraham Lincoln was
practicing law and a defendant could literally hop on
his horse and ride out of town without ... paying a
judgment. ... Class actions did not exist in a time
when appeal bonds (indisc. - paper rustling); these
massive punitive damage judgments didn't exist. And
the result was that nobody contemplated the kinds of
massive judgments that you now see, that the two cases
I've just described are, ... when thinking about
appeal bonds.
We now have that situation, and we also have the
rather odd situation, the only one I'm aware of, where
states around the country are dependant on [MSA]
revenues. For that reason, ... 26 states have acted
to limit the appeal bond. In addition, 5 other states
don't require a bond at all, just the (indisc.) stays
of a judgment while it's on appeal. So you've now got
31 states in this country that do not require appeal
bonds; that covers about 70 to 75 percent of the U.S.
population. Frankly, our desire, our goal, is to try
to pass this everywhere because, as these two cases
I've described have shown, one bad judgment anywhere
can prevent the companies from being able to honor
their obligations under the [MSA], and we would rather
not see that happen.
Number 2111
MR. TEEL concluded:
Just a couple of final points. First, there's no
change in this bill in the substantive law. ... What
this bill basically does is allow the companies to get
through the appeal process without having their assets
taken or being forced [into a] bankruptcy situation.
... If under the law they should lose the trial,
presumably that verdict will be sustained on appeal,
but at least it will let them get through the [appeal]
process. Second, this is not a fix for some case
that's hanging out there right now; we are not aware
of a case in Alaska ... that currently presents this
kind of risk. This is not an effort to try to mess up
an ongoing piece of litigation for somebody else, but
we feel that we have to do this in every state in
order to protect the MSA.
Third, the dissipation-of-assets provision ... is in
this bill as it has been in most of the bills. One of
the comments I've occasionally heard made about this
is, "How does anybody know whether that's going on,
whether assets are being dissipated," and I think the
answer to that is [that] in some industries maybe that
would be hard to see, [but] there's probably not an
industry in the United States that is more closely
watched by all sorts of people - including 50 state's
attorneys general - right now, than the tobacco
industry: the four companies I represent. There's a
ton of public information available, there's a ton of
analysts out there who follow this, and I (indisc. -
coughing) pretty easy to see whether a dissipation-of-
assets situation was occurring.
Finally, a comment was made in previous hearings on
the Senate bill ... [regarding] what happens if ... a
truck driven by a Philip Morris employee plows into a
school bus in Alaska. There may be a lot of answers
one could give to that ..., but the basic answer is:
Philip Morris doesn't have any employees in Alaska;
its parent company, Altria [Group, Inc.], does not
have any employees in Alaska; its sister company,
Kraft [Foods], does not have any employees in Alaska.
That's not how the chain of distribution works, and so
while it's an interesting hypothetical, it's just not
something that's likely to happen in Alaska. With
that, I will stop, and I'd ... be very happy to answer
any questions.
Number 2203
REPRESENTATIVE GRUENBERG turned attention to page 2, line 5,
which read in part, "is dissipating assets outside the ordinary
course of business to avoid payment", and said he is concerned
about a possible loophole. He remarked, "I don't want the
defendant to be able to say, 'Well, we're trying to avoid the
payment of the judgment, but it's in the ordinary course of
business'; so I'd like to eliminate the phrase, 'outside the
ordinary course of business". Representative Gruenberg asked
Mr. Teel if he would be opposed to eliminating that phrase.
MR. TEEL replied:
That language is in virtually every one of these
dissipation-of-assets sections, and the reason it is
there is to try to recognize that the companies
involved here are pretty huge companies that are
constantly moving money around for all sorts of
purposes. What we were trying to get at was something
where a pattern emerges of something unusual
happening, like ... moving the company out of New York
City and into Mexico or something. So we were trying
to set up the comparison between what's the normal ...
pattern of behavior for these specific companies in
their ordinary course. It was not an attempt to
create some sort of loophole; it was just an attempt
to recognize that there's got to be some ability to
move money. If the committee really wants to do that,
I recognize that is not the most important language in
the bill, but it is language that's in every other
state's dissipation section.
REPRESENTATIVE GRUENBERG remarked that he did not want to wind
up going before the supreme court on the construction of that
particular phrase.
MR. TEEL said that although he would prefer that the phrase be
retained, he understands if the committee would prefer to remove
it.
Number 2297
REPRESENTATIVE GRUENBERG asked whether anyone else has raised
this issue.
MR. TEEL replied that from time to time, during the course of
similar discussion in other states, it has been raised, but the
end result for the most part has been to retain that language.
He noted, however, that there are two or three states that
decided not to include "this provision." In response to a
question, he said that although there have been slight
variations of the provision, it has pretty much said the same
thing and included the "outside the ordinary course of business"
language.
REPRESENTATIVE GARA asked Mr. Teel if he helped draft the
language in HB 468.
MR. TEEL said yes.
REPRESENTATIVE GARA asked what the phrase, "an affiliate of a
signatory" means.
MR. TEEL said that typically, the way affiliate is defined in
the law, it includes parent corporations and sibling companies.
TAPE 04-30, SIDE B
Number 2393
MR. TEEL went on to say that what he and his clients were
concerned about were situations in which somebody throws a
parent company into litigation against the party that signed the
MSA. In such a situation, a judgment against a parent company
could sufficiently weaken the whole enterprise because the
parent company would have to seek a stay under the bankruptcy
laws and this in turn could potentially result in a stay of its
subsidiary enterprises. He went on to say:
We're really trying to prevent that sort of situation.
There was [a] little bit of concern ... about the
situation where you might have a retailer or a
distributor who is named in a lawsuit and goes all the
way through judgment ..., and ... for that reason we
also put in some language in this bill dealing with
appellants collectively. We were trying to keep those
people from having to post their own bond.
REPRESENTATIVE GARA offered his understanding that a lot of
cigarette companies produce other products as well, for example,
cheese.
MR. TEEL acknowledged that the parent company of Philip Morris
[Incorporated], Altria [Group, Inc.], also owns Kraft [Foods].
REPRESENTATIVE GARA said that he wants to make sure that the
legislation is as narrow as possible because he is concerned
about extending "this protection" to any case that involves an
affiliate of a tobacco company even if it doesn't involve
tobacco specifically. If the real concern is tobacco
litigation, he asked, then why is this bond rule applicable to
non-tobacco litigation too? Why not limit it to just tobacco
litigation?
MR. TEEL replied:
Let's imagine you had something that ... didn't
involve tobacco per se, say a big derivative suit
brought against the parent company, Altria [Group,
Inc.], that somehow dealt with ... some sort of
corporate action that had nothing in particular to do
with the sale of cigarettes. If that resulted in a
massive judgment, ... you'd still have to bond that,
and the process of having to bond it could cause
Altria [Group, Inc.,] to have problems continuing to
make its obligations under the MSA. It really doesn't
have much to do at all with cigarettes; it has to do
with the financial health of the company, and any
large judgment could weaken the financial health of
the company.
Number 2258
REPRESENTATIVE GARA asked why the amount of $25 million is
proposed. Why is that the appropriate amount as opposed to $60
million or $80 million?
MR. TEEL replied:
We start with $25 million. I will tell you there is
one state - Idaho - that went with $1 million; they
thought $25 [million] was outlandish. The way it has
worked out around the country, it's really kind of a
question of what the legislature is comfortable with,
and I think the bill that came out of the Senate side
this morning ... [now has an] amount [of] ... $100
million. And with that, I think some of these other
concerns ... they were okay with. ... About 10 to 13
... states have the $25-million number; about another
5 or 6 have $50 million; 1 has $75 [million]; about 5
or 6 have $100 million; and 2 have $150 million.
REPRESENTATIVE OGG asked whether it would be possible for a
company like ExxonMobil Corporation to become an affiliate of
one of the signatories to the MSA and, under the current
language in HB 468, thereby "get out of their $5 billion bond."
MR. TEEL said no, adding that although it is theoretically
possible that any company could make a corporate bid on another
company, as a practically matter, there are very few companies
in the world that are looking to enter into the tobacco
industry, particularly given the recent settlements and
litigation. He offered his understanding that much of the Exxon
Valdez litigation was taking place in the federal courts, and HB
468 establishes a rule that it would not apply in federal
courts. He mentioned that [his firm] had been advised to limit
the legislation proposed for Alaska to just tobacco litigation
specifically because of the Exxon Valdez litigation.
REPRESENTATIVE GRUENBERG noted that AS 45.53, which HB 468
proposes to alter, pertains only to cigarette sales.
MR. TEEL pointed out that some of the other states "have broadly
applicable caps that they've adopted to these appeal bonds," and
so their legislation applies to more than just the MSA. The
legislation before the committee, however, is "MSA-specific."
Number 2107
JENNIFER APP, Alaska Advocacy Director, American Heart
Association, said that the American Heart Association is
concerned about HB 468 because it fails to protect the public
health of all Alaskans and is not needed to protect the MSA
payments that Alaska receives every year. She noted that
because the use of cigarettes is the number one preventable
cause of heart disease, the American Heart Association spends a
lot of time and energy ensuring that the appropriate amount of
the MSA funds actually gets spent on tobacco education and
cessation programs. The American Heart Association does not
support HB 468. Notwithstanding that the MSA payments are
incredibly important to the American Heart Association, the
appeal bond limit proposed via HB 468 is nothing more than
special legislation for tobacco companies that wish to get out
of the current appeal bonds which apply to all companies doing
business in Alaska. "This bill essentially would give the
tobacco companies a bit of a free ride here, letting them cap
the appeal bond limit at $25 million," she added.
MS. APP said that appeal bonds serve an important role in
protecting plaintiffs that have legitimately prevailed in a
lower court. This mechanism ensures that defendants don't use
repeated frivolous appeals, and also ensures that defendants
don't lose their assets or hide them during the appeal process.
She noted that Representative Gruenberg has already touched on
the American Heart Association's concern regarding subsection
(b) of Section 1, specifically the language, "outside the
ordinary course of business". She opined that it would be very
difficult, perhaps close to impossible, for a plaintiff to show
that a company was dissipating assets outside the ordinary
course of business, especially in complex litigation against
large tobacco companies with widely dispersed assets.
MS. APP predicted that if there ever were to be a large class
action lawsuit in Alaska that prevails in a lower court, it
could result in a damage award in the billions of dollars, for
example, in a case in which cigarette companies are found guilty
of marketing cigarettes under false pretenses, such as what
happened with the so-called "light" cigarettes, or if a company
is found to be directing its marketing toward children. In such
a situation, a tobacco company could get away with paying a $25
million bond on a multi-billion dollar judgment. Even if such
is not likely to occur in Alaska, she remarked, it does set a
dangerous precedent without necessarily offering protection to
those that are harmed by cigarettes, which is the goal of having
an appeal bond.
Number 1955
MS. APP offered her belief that provisions ensuring that
companies don't go bankrupt are already in place. First of all,
companies can file a motion with the court to reduce the amount
of the appeal bond, as occurred in the aforementioned Illinois
case. The defendant can also work out an agreement with the
prevailing plaintiffs to post a smaller bond. She noted that
the signatory companies are very big companies; for example, the
parent company of Philip Morris Incorporated has total assets of
$87.5 billion, net revenues of $80.4 billion, and U.S. tobacco
revenues of $18.9 billion. She said she finds it somewhat
ironic that the amount of $25 million was chosen for Alaska as
an appeal bond limit, since that is also the amount of money
that tobacco companies spend annually in Alaska marketing their
"deadly products." Tobacco companies do have money to spend,
she remarked, they just don't want to post it on appeal bonds.
MS. APP opined that by lowering nonessential spending, tobacco
companies could raise the money to post on appeal bonds without
impacting their MSA payments. In conclusion, she said that if
[the legislature] is truly concerned about the future of the MSA
payments, there are some alternatives to the concept proposed
via HB 468 that the American Heart Association would be
satisfied with, for example, using language that sets an appeal
bond limit at no greater than the total value of a losing
defendant's assets, or at no greater than a losing defendant's
total revenues for the prior fiscal year. Such alternatives
would be legitimate ways of ensuring that tobacco companies are
not forced into bankruptcy, while also ensuring that they are
not let off the hook too easily. House Bill 468 is being
proposed specifically for future large class action lawsuits,
and $25 million is very small in terms of an appeal bond for
such suits.
CHAIR McGUIRE noted that the American Heart Association has also
provided written testimony.
REPRESENTATIVE GARA asked what standards the court would use to
lower an appeal bond amount.
MS. APP said she did not know what they are specifically but
posited that the courts do a balancing test between the amount
of the judgment and the amount of the bond.
Number 1741
REPRESENTATIVE HOLM raised the issue of perhaps having an appeal
bond limit of 10 percent.
MR. TEEL said that such has been discussed in a number of
states, but has not been adopted except in a couple of states
and then only in conjunction with a "hard dollar cap" and for
all defendants, not just to the MSA signatories. He surmised
that the reason a 10 percent limit has not been more favorably
received is because no one is "very enthusiastic about the
inevitable post-judgment proceeding to figure out what 10
percent of net worth is."
CHAIR McGUIRE noted that in members' packets are handouts
provided by Covington & Burling detailing the appeal bond limits
enacted by different states; for example, California has a limit
of the lesser of 100 percent of the judgment of $150 million,
and Texas has a limit of the lesser of 50 percent of the
judgment debtor's net worth or $25 million. She remarked that
some states have opted for having an appeal bond limit that is
only applicable to the punitive damages portion of a judgment.
MR. TEEL surmised that those were states that enacted their
appeal bond limits at the time of the aforementioned Engle case,
and so the focus was very much on the punitive damages aspect of
that case. Since that time, he remarked, a couple of states set
appeal bond limits applicable to "damages of all kinds."
CHAIR McGUIRE asked how the punitive damages have compared with
compensatory damages in these cases.
MR. TEEL said that although there is no "average" case, in every
complaint against tobacco companies that he's seen, there is an
assertion of "a punitive damages claim." He mentioned that the
tobacco industry probably prevails in most individual personal
injury cases, though not all. And in some of the cases that
have been lost, there have been punitive damages ranging between
1,000 times more than the compensatory damages to less than the
compensatory damages. He added:
I think the world of "compensatories" has changed a
little bit, though, in light of the U.S. Supreme
Court's decision in 2003 in the State Farm (ph) case,
which added a sort of constitutional overlay to the
relationship between compensatory and punitive
damages. And that has resulted in, not only for the
tobacco industry but for other companies, cases being
sent back to trial courts to have the "punitives"
reexamined.
Number 1498
MR. TEEL remarked that generally, the truly massive portion of
these verdicts tends to be punitive damages, adding that he is
not aware of an individual "smoking and health case ... where
the ultimately awarded compensatory damages to the plaintiff
exceeded the $25 million that's the cap in this bill." In
response to a question, he relayed that he practices law in
Washington DC.
REPRESENTATIVE GRUENBERG opined that in addition to amending
Rules 204 and 205 of the Alaska Rules of Appellate Procedure, HB
468 may also have the effect of amending Rule 62 of the Alaska
Rules of Civil Procedure. He asked the committee aide to
investigate that issue so that if necessary, he can offer a
technical amendment to that effect.
REPRESENTATIVE GARA noted that 25 states do not have limits on
appeal bonds.
MR. TEEL indicated that some of those states do have legislation
pending, adding that in a few states, the legislature doesn't
have the authority to make such a change - instead the court
must do it.
REPRESENTATIVE GARA asked whether any states have simply turned
down this proposal.
MR. TEEL relayed that in Iowa, although the legislature passed
an appeal bond limit twice, the legislation was vetoed by the
governor both times. He also offered his belief that similar
legislation didn't pass in New Mexico simply because the
legislature ran out of time.
Number 1225
EMILY NENON, Alaska Advocacy Director, American Cancer Society
(ACS), said that one of the things about HB 468 that she takes
issue with is the proposition that it is in the best interest of
Alaska to protect the health of the tobacco industry. She
elaborated:
We know that here in Alaska, tobacco annually costs
the state $132 million in annual health care costs
directly related to smoking, and an additional $129
million in lost productivity. What we bring in -
that's supposedly in jeopardy, as the argument goes
here - is between $22 [million] and $27 million from
the [MSA]. And I will remind you all that like ...
the American Heart Association, the American Cancer
Society is active in lobbying to get ... tobacco
settlement monies spent on tobacco control programs;
that fits right into our mission of eliminating cancer
as a major health problem.
But ultimately, the [MSA] was about the tobacco
industry repaying the states for the damage [it has]
inflicted, not about being a windfall for state
budgets. And so around the country, the position of
the [ACS] is, and I'm reading this right off the web
site, "We believe tobacco companies should be held to
the same standard as other industries and should not
receive special protection from state legislatures."
That is the basis that I'm coming from; I have been
looking at this [and] a lot of the other arguments
have been brought up, but that's one that I think that
we're really missing and that I would like the
committee to take seriously in consideration of this
bill.
CHAIR McGUIRE asked what would the ACS's position be if the
legislation before the committee set appeal bond limits for all
types of litigation, not just tobacco litigation.
MS. NENON replied:
I have a personal argument about that, and I would
have to ... do some more checking with our national
government relations department to find out what the
[ACS's] position is on that, [but] the research that
I've done shows that the court system is designed to
be able to handle setting [appeal] bonds. In the
Illinois case last summer, when the judge set the
[appeal] bond level at $12 billion, the court did
reduce that ... bond amount ... down to $6 billion,
and I will point out that Philip Morris [Incorporated]
was able to post a $6 billion bond. So my thinking is
that the courts have been able to handle this in other
cases, ... [and] the courts are uniquely set up to be
able to handle these kinds of issues.
Number 1042
REPRESENTATIVE GRUENBERG remarked that the statute pertaining to
the MSA stems from one-of-a-kind litigation, and that a
supersedeas bond is generally the amount of the judgment plus
interest. Such an amount, he opined, could "easily bust the
bank," particularly given that bankruptcy is sometimes used as a
form of corporate strategy and that "we've already sold 80
percent of the tobacco settlement." "So it's not as simple as
all that," he concluded.
CHAIR McGUIRE asked Ms. Nenon to provide the committee with the
ACS's position on an alternative: making the appeal bond limit
apply to all litigation. Chair McGuire said she agrees with
Representative Gruenberg that the [MSA] presents an unusual
situation.
REPRESENTATIVE HOLM asked what it costs to purchase a $1 billion
bond.
MR. TEEL relayed that a $10 million bond could be purchased for
perhaps 1 to 2 percent of that amount, whereas a $1 billion bond
could perhaps be purchased for an amount ranging between tens of
millions of dollars and $100 million, depending on "who you
are." He noted that companies that have "a higher perceived
risk in the litigation market place" have a hard time buying
bonds, adding that the tobacco industry has a little bit of a
history in attempting to buy such bonds and has typically not
been able to buy them. Instead, the tobacco companies that he
represents have had to put money into a bank account in order to
get a letter of credit from the bank; that letter of credit is
then given to the surety company, which then issues the bond.
"If you can buy them, they're a relatively small percentage of
the judgment, but it's not clear everybody can buy them," he
concluded.
Number 0813
REPRESENTATIVE GARA asked Ms. Nenon for a copy of the statement
she'd read from earlier.
MS. NENON agreed to provide a copy of that to him, adding that
the language on the ACS's web site is a lot stronger than her
spoken testimony.
REPRESENTATIVE GARA asked of Mr. Teel:
If we're trying to protect the assets of a particular
company and we're going to do it with a $25 million
limit or a $100 million limit, whatever the limit is,
why do we also have this provision in the bill that
says collectively it can't exceed $25 million ... [or
whatever the limit is], collectively among all
defendants put together?
MR. TEEL replied:
What we were worried about there was small defendants
being sued with large defendants. In these cases,
sometimes ... you get the retailers and the
distributors who get named in the lawsuit, and often
they are just there for purposes of defeating
diversity and keeping a case in state court. ... And
... sometimes they're carried all the way through to
the judgment. We just thought it was a little much to
ask some of those ... smaller [businesses] ... in this
litigation, who are not really the target, to have to,
themselves, post the larger bond. And so this was an
effort to kind of sweep everybody in on the one bond.
Most states that have passed this have kept that
"collectively" language, [but] not every state has.
CHAIR McGUIRE indicated that HB 468 would be held over.
HB 385 - AWARDING CHILD CUSTODY
Number 0698
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 385, "An Act relating to awarding child custody;
and providing for an effective date."
Number 0622
REPRESENTATIVE HOLM moved to adopt the proposed committee
substitute (CS) for HB 385, Version 23-LS1273\Q, Mischel,
2/27/04, as the work draft. There being no objection, Version Q
was before the committee.
CHAIR McGUIRE, speaking as the sponsor of HB 385, explained that
this legislation would have Alaska adopt the model code of the
Family Violence Project of the National Council of Juvenile and
Family Court Judges. The legislation attempts to deal with a
child custody award when there has been domestic violence in the
home prior to the split and eventual award of custody. Chair
McGuire opined that the current law is unfair to the parent that
has been the subject of abuse. She directed attention to page
2, line 22, and explained that under the current law, the court
is required to review which parent is more likely to continue
frequent and continuing contact with the other parent. She then
directed attention to page 3, line 17, and [explained that under
the current law] the court has to review the desire and
willingness of each to allow an open and loving relationship, on
a frequent basis, between the child and the other parent.
However, if the child or one of the parents has been abused by
the other parent, the [abused] parent or [non-abusive parent]
probably doesn't feel like encouraging a close, loving
relationship. Chair McGuire opined that the court's standard is
wholly unfair and, in many cases, places the abused parent
and/or abused child in jeopardy.
CHAIR McGUIRE explained that this legislation shifts the burden
and thus: "We will ask the court to continue to say that unless
it's shown to be detrimental to the welfare of the child,
considering the factors that are in [AS] 25.24.150(c), ... but
we're also saying that you have to consider the rebuttable
presumption that's now going to be present in what will be a new
subsection (g)." The rebuttable presumption specifies that a
child will not be placed in partial or sole custody if there are
proven incidents of serious bodily injury and/or a proven
pattern of domestic violence. She noted that she has worked
closely with Representative Gruenberg, who practices family law.
Although there have been some compromises, she stated that she
is unwilling to remove the rebuttable presumption language. She
emphasized that the overarching goal is the protection of the
child.
CHAIR McGUIRE pointed out that the committee packet should now
include an article entitled, "Man suspected in death of toddler
also faces child porn charges"; the article relates a real
situation that occurred in Ketchikan. The committee packet also
includes a petition from adults in Ketchikan who support HB 385.
The committee packet also now contains a zero fiscal note from
the Alaska Court System.
Number 0179
CHAIR McGUIRE mentioned that there are statistics that review
the long-term psychological effects of abuse on children as well
as in cases of observing it between parents. In many cases,
these children go on to face adverse physical and mental
development. In some cases, these children become abusers
themselves. Therefore, Chair McGuire said that she didn't want
to punish a battered co-parent by awarding custody to the parent
who has been the abuser. Reading a quote from the American
Judges Association, Chair McGuire said, "Studies show batterers
are able to convince authorities that the victim is unfit or
undeserving of sole custody in approximately 70% of challenged
cases." "Friendly parent" statutes are often used by abusive
parents against the protective parent, she noted. Therefore,
this legislation attempts to better protect children from the
effects of domestic violence by achieving consistency between
Alaska child protection statutes and child custody statutes.
CHAIR McGUIRE informed the committee of the following:
Alaska ranks in the top five states in the nation for
per capita rates of domestic violence. The rate of
Alaskan women being killed by a partner is one-and-a-
half times the national average. Alaska has six times
the national average of reported child sexual assault.
And in three out of four reported cases, the victim
knew the offender. The most commonly reported type of
sexual abuse [is a father who commits] ...
TAPE 04-31, SIDE A
Number 0001
CHAIR McGUIRE continued:
... incest with his daughter. And those statistics
are reported out of the Alaska Department of Health
and Social Services.
CHAIR McGUIRE opined that there are sufficient tools within the
court system that have been maintained in this legislation to
allow for a person to complete a substance abuse program and an
intervention program for batterers, if applicable, the landscape
of the case may change.
Number 0091
PAIGE HODSON informed the committee that she is the woman who
brought this issue to Chair McGuire. She explained that she is
a single mother of two children, ages thirteen and six, a court-
appointed special advocate (CASA) volunteer for abused and
neglected children in Alaska, as well as a survivor of domestic
violence. Ms. Hodson explained that she was in an abusive
marriage for 11 years. The physical abuse would happen one to
two times a year while the remainder of the time was permeated
by a high level of cruelty, emotional abuse, and verbal abuse.
She related some of the events that happened, most of which, she
said, happened in front of her oldest daughter.
MS. HODSON pointed out that she struggled to obtain help for her
family and tried to get her husband to various types of
programs, and he did attend four years of marriage counseling.
After that four years, she said she realized that things weren't
going to change. When the child abuse starting happening, she
knew she had to get out [of the relationship]. She was
eventually able to file for divorce. Although she thought she
was doing all the right things, when she entered the court
system she found her world turned upside down. She explained
that she thought she and her children would be protected and
that reasonable visitation would be put forth. However, she was
blamed for the violence equally and her fears of the violence
and his parenting were "pathologized."
MS. HODSON said that furthermore, she discovered that [an
incident of] domestic violence was used to characterize the
divorce as a high-conflict divorce. Moreover, the child abuse
was minimized to be a difference in parenting styles. The toll
on her eldest child was enormous and she almost failed fourth
grade. Ms. Hodson informed the committee that although she
ultimately prevailed, it was only after two full custody trials.
She said she has full legal custody and primary physical
custody, but her ex-husband is allowed visitation and thus her
children are still not protected, she said.
Number 0420
ALLEN M. BAILEY, Attorney at Law, informed the committee that he
is a family law attorney who was the [Municipality of
Anchorage's] prosecutor for over 10 years. For the last 30
years, he said he has prosecuted batterers or represented
victims of domestic violence in his practice. "This is an
important issue because it deals with the protection of our
children," he said. As mentioned earlier, the National Council
of Juvenile and Family Court Judges has recommended this
presumption as has the American Psychological Association, the
American Bar Association's Commission on Domestic Violence, the
American Medical Association, and the United States Congress.
Mr. Bailey stated that this proposal isn't gender biased since
both men and women commit domestic violence. However, he
acknowledged that there is a predomination of male-initiated
domestic violence. He relayed the experience he'd had with
domestic violence through his practice. Mr. Bailey emphasized
the need to protect the children whenever possible.
MR. BAILEY turned to the presumption provision, which was taken
from Louisiana's state statutes. He pointed out that there are
about 23 other states that have some version of presumption
language, adding that at least 20 of those states have strong
presumption [language]. Mr. Bailey, speaking as a family law
attorney and the vice-chair of the American Bar Association's
Family Law Section Domestic Violence Committee, strongly urged
the committee to pass this legislation.
CHAIR McGUIRE turned attention to the first U.S. national policy
statement supporting a rebuttable presumption in domestic
violence cases, which is H.R. 172. She said, "They passed a
sense of Congress that for purposes of determining child
custody, credible evidence of physical abuse of a spouse should
create a statutory presumption that it's detrimental to the
child to be placed in the custody of the abusive spouse." She
reiterated that in 1994, the National Council of Juvenile and
Family Court Judges released the model code, which included the
rebuttable presumption. Additionally, the American Bar
Association (ABA) passed a resolution in August 1989 specifying
that joint custody is inappropriate in cases in which spousal or
child abuse or parental kidnapping is likely to occur. In 1994,
the ABA published a report to its president that [recommended]
the adoption of statutes that would create a presumption against
custody to batterers. From the William Mitchell Law Review,
Chair McGuire related that some of the reasons these policies
were implemented is because of the growing body of social
science literature showing the often severe and long-lasting
effects that domestic violence has on children.
Number 0747
TRACY GOULD informed the committee that this legislation is
important to her because her best friend was murdered by her ex-
husband four days after being granted a divorce. She recalled
that during the course of the divorce hearing, the judge
reviewed testimony of eyewitnesses, professionals, and
counselors who testified to the ex-husband's abusive nature and
obsessive need for his wife. Even when one of the children
decided to poison the father, the judge still decided to "throw
all that out." The judge also viewed the husband's "excessive"
nature with the children to be a difference in parenting styles.
The wife repeatedly requested safety measures for herself and
her children.
MS. GOULD said, however, that the judge felt that the husband
and wife should still be able to co-parent, regardless of their
personal feelings and the husband's behavior toward the wife.
Consequently, after the divorce was granted, the husband was
allowed visitation and it was on those grounds that he forced
entry into the wife's house where he stabbed her over 56 times.
The children saw their father leave with a knife in his hand
covered with their mother's blood. Ms. Gould said that her best
friend wasn't the only person that died because of the "friendly
parent" provision and she wasn't the last. Three other women in
the Fairbanks area were killed during the same time period in
which the trial was taking place. Ms. Gould said that HB 385
would be invaluable toward changing these [friendly parent] laws
so that these situations don't ever happen again.
Number 0995
KIMBERLEE VANDERHOOF, Program Director, Careline Crisis
Intervention, informed the committee that prior to her current
position, she worked as the legal advocate for the women's
shelter in Fairbanks for five years. During the time she worked
with the women's shelter, she said she worked with thousands of
victims, most of who had children and were intimidated by the
court system. Ms. Vanderhoof stated that she was honored to be
the legal advocate for Lisana Burch. In the months before Ms.
Burch's custody trial, she requested and was granted protective
orders against her husband. Ms. Burch had expressed concern
that she would be viewed as not complying with the "friendly
parent" provision of Alaska Statutes if she obtained a
protective order during her divorce. Therefore, Ms. Burch
decided not to obtain a protective order. Ms. Burch strongly
and courageously represented herself through her divorce and
custody hearing and throughout the trial she expressed concern
for her safety and the safety of her child.
MS. VANDERHOOF said that during Ms. Burch's trial, witnesses
testified that Ms. Burch's abuser had a problem with anger, had
been diagnosed with a mental health disorder, had been suicidal,
self medicated, and could pose a threat to the safety of his
children. However, toward the end of the trial, the trial court
judge commented that he had heard little that would help him
make a decision. In the end, the court concluded that the
parties should be flexible and admonished the parties that they
needed to agree on important decisions in their child's life.
Ms. Burch was granted primary custody, but three days later
during a visitation exchange "the spider lured her to his web."
If this legislation had been enacted in 2001, it would have
provided another tool to enhance the safety of domestic violence
victims. Ms. Vanderhoof urged the committee to pass HB 385
because it will eliminate a victim's fear of being seen in an
unfavorable light if the victim chooses to use a protective
order to enhance his/her safety.
Number 1170
GIGI PILCHER began by thanking the sponsor [for introducing HB
385]. She said it's now time to talk about protecting lives
rather than assets. Ms. Pilcher related that on February 2,
2004, a young woman, Nannaput Paul, who had been in the U.S. for
a little over three years, placed her trust in the Alaska
justice system to protect her child and herself. This woman
petitioned the court on behalf of her 22-month-old daughter for
a domestic violence restraining order against her husband. Her
husband had told her that if she left him, she would be sent
back to Thailand and never see her daughter again.
MS. PILCHER said that Ms. Paul wanted her daughter to be safe
and thus she placed her trust in the system and "we all told her
she was doing the right thing and that everything would be
alright." However, on Friday, February 20, 2004, during a
hearing, the judge modified the order, based on a court-
appointed guardian ad litem, to allow for unsupervised visits
between father and daughter. When Ms. Paul's daughter was not
returned to her on time, she called the police [and] the
guardian ad litem; her daughter was found dead at the father's
residence. Ms. Pilcher said that Ms. Paul did everything right
to protect her daughter, but the system failed her and her
daughter. Although it's too late to save Ms. Paul's daughter,
it's Ms. Paul's wish that no other parent will have to suffer
such a great loss. In closing, Ms. Pilcher requested that the
committee pass HB 385.
Number 1382
ROSITA TWAIM opined that this legislation should be passed
because children are being killed. Ms. Twaim highlighted that
when domestic violence is involved, the most dangerous period of
time is when the woman decides to leave her husband. She
expressed the need for a mother to be able to protect herself
and her children. If the father has a criminal background and
has shown violence toward the mother and children, the father
shouldn't be allowed to see either the mother or the children.
Exchanging the children between the parents while the court is
determining which parent should have custody shouldn't be
allowed unless the mother filing the restraining order agrees to
the visitation. Ms. Twaim acknowledged that starting over for a
mother and her children can be difficult, but she knows it can
be done since she managed to come out of a relationship
involving domestic violence. The children are really the
victims and the law needs to be changed to protect the children.
Number 1491
DENNIS L. McCARTY, Attorney at Law, informed the committee that
he has been an attorney for over 30 years. He also informed the
committee that he was the attorney in the earlier mentioned case
of Ms. Paul. Mr. McCarty explained that he has always taken on
domestic violence cases thinking that he could make a
difference. He said, "I'm always hesitant ... to rush forward
with a particular instance to [state] ... a reason why something
should happen, but this is a law that does need to be changed."
The statute proposed in HB 385 would make the presumption not
just one of nine factors to be considered by the court. It's
most important, he opined, to have this definition in the
domestic violence petition area. In a custody [case], the judge
seems to be able to more completely explore areas, as it's not
an expedited process. Furthermore, this proposed change would
be a major factor in how these hearings are handled, especially
in rural areas where the magistrate doesn't have extensive legal
experience or experience dealing with domestic violence.
MR. McCARTY said he believes there is a conflict between
encouraging the parent that's willing to be cooperative and the
one that isn't. He pointed out that there is a means of proving
domestic violence, and in many cases the definitions come from
Title 18, which refer back to criminal statutes. He remarked
that the committee may want to consider whether some changes
have to be made to Title 18 or whether to refer to other
statutes. In the case of Ms. Paul, the involvement of child
pornography might be evidence of domestic violence. He noted
that there are other statutes that explicitly speak to hitting
and threatening. In Ms. Paul's case, the magistrate concluded
that there was domestic violence and the long-term order should
continue. However, the [difficulty] is in balancing the
directive to maximize the contact of each parent with the
children while maintaining safety for the children. Mr. McCarty
emphasized that [the courts] are driven by the best interest of
the children.
MR. McCARTY relayed his understanding that [HB 385] makes it
abundantly clear that if there is a determination of domestic
violence, it becomes a strong factor in driving the ultimate
decision regarding custody. Mr. McCarty said he viewed [HB 385]
as a tool, noting that he hoped that those dealing with these
type cases are already using [what is laid out in this
legislation]. He reiterated that this should be very beneficial
in rural areas where the only resource available is a domestic
violence petition before a magistrate.
Number 1752
KERRY RASMUSSEN informed the committee she is the grandmother of
an eight-year-old whom she feels this legislation will greatly
help. She said she hoped HB 385 would pass.
Number 1762
LANETTA LUNDBURG had her testimony read by Jessica Stone
[original punctuation provided]:
The reason for my presence today for public comment on
House Bill 385 is very interesting. If asked about
this bill one week ago I wouldn't have known anything
about it, or interest in participating in public
comment. The events of last week and a tragedy we
have experience has caused pause for thought. HB 385
is very important and needs to be closely looked at.
After a brief review of House Bill 385 I continue to
wonder if there is a truly fail-safe way to be a voice
for the silent and be a bo8ice for the young innocent
victims.
One item that comes vividly to my mind is the need for
a "cooling off" period, post ruling in a custody case.
As you are aware, cases brought forth always are
ridden with emotion. Even though a cooling off period
(suggest 30 days) isn't an absolute guarantee, it does
provide time for improvement or more thorough
assessment.
Cooling-off period means that for a minimum of 30 days
any consideration for visitation by the nonawarded
custodian parent will only be allowed a visitation
with a child under the supervision by a 3rd party
court-appointed custodian.
What our community has recently experienced had
decisions of tragic consequence. We cannot afford to
compromise defending the voice of the silent &
innocent young. Thank you.
Number 1847
CHRISTINE McLEOD PATE, Mentoring Attorney, Alaska Network on
Domestic Violence and Sexual Assault (ANDVSA), thanked the
committee for allowing her to speak in favor of HB 385. She
informed the committee that she has been an attorney in Alaska
for 10 years and has been working in the field of domestic
violence for the past 12 years. She reviewed her work in this
area, which includes about 2.5 years as a staff attorney for
Alaska Legal Services in Fairbanks and 2.5 years as the
executive director of the domestic violence and sexual assault
program in Sitka. For the past five years, she has been with
ANDVSA running a pro bono program for victims of domestic
violence and sexual assault. She explained that in her current
position, she screens cases statewide; these victims need
representation primarily in divorce, custody, and protective
orders. She further explained that she finds volunteer
attorneys, whom she trains and mentors, for the aforementioned
clients. She noted that she also handles a small caseload
herself.
MS. PATE said that once a victim has made the difficult decision
to leave the batterer, custody litigation often becomes the new
front for the batterer to exercise control over the victim.
Batterers threaten victims that they will lose custody if they
leave the relationship. She relayed that Richard D. Cody (ph),
a nationally known family law attorney, has summarized this as
follows:
After 20 years in the family law courtrooms throughout
this country, I can confidently say that no woman,
despite very abundant evidence that her child has been
molested by her ex-husband or that she has been
repeatedly humbled by the violent father of her child,
can safely walk into any family court in the country
and not face the grave risk of losing custody to the
abuser for the sole reason that she dare to present
the evidence to the judge and ask that the child be
protected.
Number 1947
MS. PATE echoed that some studies show that abusive fathers
contest custody up to 70 percent of the time. Furthermore,
social science research agrees that domestic violence is about
one person's exercise of power and control over the victim.
Once the victim decides to leave the relationship, the family
court becomes the new arena to exercise power and control. Ms.
Pate relayed that there are several reasons abusive parents are
winning, the first being money. Frequently, the abusive parent
has more control over family assets and has better access to
legal representation. The second reason is related to the
nature of domestic violence. Characteristics that batterers
exhibit, such as confidence, manipulative behavior, denial about
battering, can "come across well in a family court arena." In
contrast, however, the victim of abuse may be suffering from
post traumatic stress disorder or other psychological effects of
the battering, and so may come across as irrational, over-
emotional, spiteful, and vindictive.
MS. PATE said that the third reason abusive parents are winning
is lack of evidence because the nature of domestic violence,
along with the shame and denial that often accompanies it, makes
it common that there is little evidence or witnesses. The final
reason abusive parents are winning is because of the lack of
training. Many judges, child custody investigators, and
guardian ad litems are sometimes the de facto decision-makers in
these cases, but they have little or no training in domestic
violence. In fact, there is no requirement that child custody
investigators, who are often charged with making expert
determinations with regard to what is in a child's best
interest, have training in domestic violence or sexual abuse
issues.
MS. PATE said that although society's general understanding of
domestic violence has greatly increased over the last 20 years,
the evolution of state custody laws has moved away from holding
the abusive parent accountable in the family law arena. For
example, Alaska's family courts are (indisc.) mediation, joint
custody, and friendly parenting. The aforementioned concepts
are in sharp contrast to social science literature about
domestic violence and the recommendations of several national
organizations. Furthermore, Alaska's statutes outside the
family law context are set up to protect the safety of victims
of domestic violence and the post-separation wellbeing of the
children. Social scientists fear that the time of separation is
the most critical time for battered women. She informed the
committee that separated women are abused at a rate of 14 times
higher than women still living with their abuser.
Number 2049
MS. PATE recalled that the committee has heard about the
devastating social, psychological, and physical effects of
domestic violence on children. She pointed out that there is a
strong correlation between parents who abuse their partners and
parents who abuse their children. She mentioned that the
American Law Institute, in its "2002 Principals of the Law
Family Disillusion Analysis and Recommendations", includes the
recommendation close to the presumption included in HB 385. Ms.
Pate reiterated that Alaska's statutes, save the area of family
law, take a strong stance of protecting children from domestic
violence. In fact, Alaska law provides an additional criminal
charge if a child is present during a domestic assault.
Furthermore, domestic violence between parents is grounds for
the Office of Children's Services to take custody of children.
MS. PATE said that ironically, a battered mother has to worry
that if she leaves the domestic violence, the abuser would take
the children, and if she doesn't leave, the state will take the
children. Furthermore, there is court precedent regarding the
harmful effects of domestic violence on children. She offered
that the Alaska Supreme Court has acknowledged that it is well-
documented that witnessing domestic violence has a profound
effect upon children and that there are significant
psychological problems with children who witness domestic
violence, especially during important developmental stages.
MS. PATE opined that in HB 385, the rebuttal presumption against
a parent perpetrating domestic violence gaining custody takes
some discretion away from judges, adding that that discretion
has been very harmful. She relayed that she has spoken with
hundreds of battered women with regard to the custody awards
they may receive in court and she has to explain the great risks
that exist under current law. Ms. Pate said that victims are
baffled by the court's lack of focus on their safety and thus
they lose faith in the court system. Therefore, the victims
stop utilizing the system and ultimately choose either to stay
in violent relationships, which perpetuates the cycle of
violence for future generations, or to take drastic measures
such as going underground or into hiding, which is sure to
result in the loss of custody when they eventually return to the
court system.
Number 2181
MS. PATE turned to joint legal custody or shared decision-
making. She informed the committee that courts routinely order
an abusive parent to have joint legal custody of children with
parents they have abused. Currently, the law contains a
presumption that joint legal custody is in the child's best
interest. However, the Alaska Supreme Court has found that a
history of abuse between the parties should make joint legal
custody inappropriate. Despite the aforementioned precedent and
the knowledge that it's dangerous for victims to have continuing
communication and contact with their abusers, family court
judges continue to award joint legal custody orders in domestic
violence and sexual assault cases.
MS. PATE spoke in support of amending Alaska's current "friendly
parent" factor. She expressed the need to make an exception for
victims of domestic violence. The harmonious co-parenting
envisioned by the friendly parent factor is impossible and often
dangerous in family law cases. If the court doesn't "see" the
domestic violence or minimizes it, the protective parent is
penalized under the theory that not awarding custody to the
abusive parent can create "parental alienation syndrome," a junk
science that isn't supposed to be used by Alaska's family court
judges.
MS. PATE said that under the current law, she is forced to
advise clients that despite concerns regarding their safety and
the safety of their children, they have to appear to be friendly
to the other parent and sometimes permit visitation or they risk
losing their children. This isn't the message that should be
sent to victims of abuse, she said. In closing, Ms. Pate urged
the committee to move out HB 385, and stated that the greatest
beneficiaries of this legislation are the children.
Number 2282
ALVIN CARR informed the committee that he is a retired law
enforcement officer who is currently employed at Ketchikan
General Hospital. Mr. Carr congratulated the committee on
trying to get HB 385 passed, as it appears to be a good thing
for victims of domestic violence. He pointed out that child
pornography isn't listed as an abusive behavior in the [statute]
being discussed today. Furthermore, child pornography isn't
listed in Title 18, the domestic violence statute. Mr. Carr
said he suspected that most everyone would agree that coercing
children by threat or monetary means to engage in sexual acts
for the sake of selling or transmitting those acts is a crime of
violence. If the aforementioned is true, then one would surmise
that those who buy, sell, distribute, and possess child
pornography are included in the crime of violence against
children.
TAPE 04-31, SIDE B
MR. CARR said that if child pornography was added to the
domestic violence Act or to the Title 25 as an act of abuse, it
would go along way toward giving the courts some leeway with
regard to providing a satisfactory parent. Mr. Carr, returning
to the recent situation in Ketchikan, indicated that court
orders should be in hand when individuals leave the court. Mr.
Carr expressed concern with regard to the totality of
circumstances surrounding investigatory methods for placement of
children when there is to be dual custody. He then turned to AS
25.20.090(10), which says "other factors the court considers
pertinent." He explained that there are objective factors and
subjective factors, both of which should be considered. Mr.
Carr again congratulated the committee for its efforts to make
the law better in this area, although he said he believes more
work can be done to help the courts and its agents in these
cases.
Number 2212
LAURIE BROWNLEE, court-appointed special advocate (CASA), began
by noting her support of HB 385. As a CASA volunteer, she said
she has seen first hand the effects of domestic violence and
abuse on children. More importantly, she informed the
committee, she is testifying as a survivor of childhood domestic
violence and abuse. She relayed that she grew up in an
extremely violent home, and therefore knows how dangerous it is
for children to be in such an environment. Such situations are
detrimental to a child's sense of safety, trust, and security.
MS. BROWNLEE explained that her mother was abused by her father
for more than 17 years. She recalled being 16 years old and
calling the police when her father was holding her mother and
two of her other sisters at gunpoint. She noted that her father
was taken away, no one was harmed, and her parents were
eventually divorced. She relayed that although she has
recovered from the psychological effects of her situation, her
youngest sister has become the victim of long-term domestic
violence by her now ex-husband. Her sister struggled with the
courts. Despite having to obtain three separate protective
orders against her husband, her sister ultimately had to accept
the court's custody ruling, which gave her ex-husband
substantial unsupervised visitation with her two small children.
Therefore, Ms. Brownlee said she hopes that by passing HB 385,
the cycle can be broken, because abused children often become
abusers as well as victims of abuse by the abuser and the court
system. Ms. Brownlee concluded by urging the committee to
support passage of HB 385.
CHAIR McGUIRE, upon determining no one else wished to testify,
closed public testimony.
REPRESENTATIVE GRUENBERG said he has heard from people who are
concerned that the judges trying these cases need to do justice
and if many strictures are placed on the law, it may cause as
much harm as good. Having practiced in this area,
Representative Gruenberg said that he has viewed it from both
sides. He then turned attention to page 4, line 7 of Version Q,
which in part states: "The presumption may be overcome only by
clear and convincing evidence ...." He asked if that language
is found in any other state other than Louisiana.
MR. BAILEY answered that he believes such language is found [in
the law] in North Dakota. In further response to Representative
Gruenberg, Mr. Bailey confirmed that the clear and convincing
evidence standard is just below the standard of beyond a
reasonable doubt; additionally, clear and convincing evidence is
the standard for termination.
REPRESENTATIVE GRUENBERG said that he has difficulty with [the
clear and convincing evidence] provision in this legislation.
The language refers to the successful completion of a batterer's
course and that the individual doesn't engage in substance
abuse. Furthermore, the legislation specifies that the best
interests of the child require that parents participate as
custodial parents under very narrow [circumstances].
Representative Gruenberg inquired as to Mr. Bailey's view of
changing the aforementioned to language to refer to the normal
civil standard of preponderance of the evidence.
MR. BAILEY replied that [the Alaska Bar Association] believes
that the rebuttable presumption is appropriate, and noted that
the model code contains a preponderance of rebuttable
presumptions.
Number 1912
REPRESENTATIVE GRUENBERG related that there is some concern with
the current language because it will make it difficult, in some
cases, for the courts to determine an equitable solution.
Therefore, he said that he had developed a proposal that would
add the language "The courts shall [give] additional weight to
evidence that the domestic violence was severe, repeated, or
recent" to AS 25.20.090(8) and AS 25.24.150(c)(7), as well as
language similar to that on page 5, lines 1-3 of Version Q. The
similar language would read as follows: "The fact that a parent
who was the victim of domestic violence suffers from the effects
of the domestic violence does not constitute a basis for denying
custody to the parent, unless the court finds that the effects
of the domestic violence are detrimental to the parenting
abilities of the parent." Representative Gruenberg inquired as
to Mr. Bailey's view of such an approach.
MR. BAILEY specified that Representative Gruenberg's proposal
doesn't achieve the goal of protecting the children. He
explained that the control dynamic in abusive relationships is
established over time, and therefore it isn't necessarily the
recentness of the domestic violence but rather the abuser's
ability to do it again and again in order to maintain control.
Many of these abusers are physically abusive and children in
their care are 15 times more likely to be abused than children
who are not in abusive homes. There is such a significant need
to protect the safety [of the child] that the rebuttable
presumption is believed to be appropriate.
Number 1760
REPRESENTATIVE GRUENBERG turned to the tactic of obtaining a
domestic violence order simply as a way to more easily obtain
custody, and opined that the language at the top of page 4 would
seem to allow such misuse. Representative Gruenberg asked how
this could be guarded against under the current language.
MR. BAILEY cited page 380 of Children Exposed to Marital
Violence, which was published by the American Psychological
Association. He read the following: "There seems to be a
relatively low percentage of allegations of child abuse in
divorce cases; less than 10 percent of the cases. And when they
do occur, they are substantiated about as often as in the
general population." He said the aforementioned is similar to
the amount of false domestic violence petitions that are filed,
and opined that the masters and judges who hear domestic
violence petitions do a good job of fettering out bogus domestic
violence petitions.
REPRESENTATIVE GRUENBERG surmised, then, that the factual
determination regarding whether the individual has, in the past,
committed an act of domestic violence would be a question of
fact to be determined by the trier of fact.
MR. BAILEY replied yes, the custody judge would determine
whether domestic violence had been committed and whether it
gives rise to the presumption. This wouldn't necessarily hinge
upon a prior determination by another court.
REPRESENTATIVE GRUENBERG also surmised that the decision would
be made in the case at bar rather than as a negligence per se
issue for which one simply brings a certified copy of an offense
and this gives rise to a higher standard. Therefore, evidence
of a court order could be brought in but, in and of itself, that
wouldn't establish the fact.
MR. BAILEY agreed.
Number 1580
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, as
follows:
Page 4, lines 7,
Delete "only"
Page 4, lines 7, after "by"
Delete "clear and convincing"
Insert "a preponderance of the evidence"
CHAIR McGUIRE asked whether there were any objections to
Amendment 1. There being none, Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG turned to subsection (k) on page 5,
lines 1-2. He explained that he wished to add the following
language to subsection (k): "unless the court finds that the
effects of the domestic violence are detrimental to the
parenting abilities of the parent." Representative Gruenberg
said there might be a situation in which the person is so
traumatized that they are psychologically or physically unable
to parent the child. He clarified that in such a case, he
wasn't suggesting that custody be given to the batterer, but
rather that the court be able to consider whether a parent is
incapable of caring for the child. Representative Gruenberg
inquired as to Mr. Bailey's thoughts on including such language.
MR. BAILEY remarked that there is a difference between having a
person's parenting ability affected by abuse and having a
person's ability to parent so profoundly affected that they are
unable to safely parent.
REPRESENTATIVE GRUENBERG specified that he is trying to get at
the latter situation.
MR. BAILEY suggested, then, that the language "safely" would be
appropriate to use. He further suggested that the appropriate
thing would be to obtain services for the abused parent so that
he or she can parent effectively. He noted that there are cases
in which the judge looks at both parents in order to determine
who is worse.
REPRESENTATIVE GRUENBERG then suggested the following language:
"unless the court finds that the domestic violence renders the
parent unable to safely parent the child". [This was treated as
a motion to adopt Amendment 2.]
CHAIR McGUIRE interjected that she would like to include the
following language: "so severe".
REPRESENTATIVE GRUENBERG clarified that [Amendment 2] would then
read as follows: "unless the court finds that the effects of
the domestic violence are so severe that they render the parent
unable to safely parent the child".
MR. BAILEY said he believes that language captures the essence
of the real problem in families in which there has been
significant abuse and problems [stemming from both parents].
MR. McCARTY said [Amendment 2] "is a bad result" when reading
the whole of the statute, which addresses which parent is going
to have the children. If one accepts the principle that
domestic violence is fairly suggestive of parenting skills, then
Amendment 2 seems to say "if you've damaged the other person
enough, you will get to keep your kids as the battering person."
Mr. McCarty opined that Representative Gruenberg's concern would
be more appropriately addressed in the context of actions by
child protection services. Therefore, Mr. McCarty said he
believes [Amendment 2] could create a dangerous situation.
Number 1239
REPRESENTATIVE GRUENBERG withdrew Amendment 2.
REPRESENTATIVE GARA expressed concern because the unamended
subsection (k) would still leave a circumstance in which a child
wouldn't be safely placed with a parent and the court couldn't
consider that. Domestic violence aside, the goal is to place
the child in the best situation possible. However, domestic
violence must be considered. Representative Gara explained that
the problem with subsection (k) is that it says that the court
can't consider that the remaining parent is not able to take
care of his or her child because of the abuse.
CHAIR McGUIRE relayed her belief that the court has a variety of
tools at its disposable, and these are retained under
[subsection] (c) on page 3, Section 4.
MR. McCARTY said that the other factors, as specified in Section
4, clearly direct the court to look at the whole situation for
the children. He pointed out that under [current] statute, the
courts have the ability to appoint a guardian ad litem, a
visitor, or attorneys to represent the children's interest. Mr.
McCarty noted his fear of presumptions limiting the abilities of
judges to make decisions. The judge is supposed to be reviewing
what is in the best interest of the child through the factors
listed. If the court determines that neither parent can [have
custody of the child], then there are other options such as a
guardian ad litem, an attorney, or a referral to child
protective services.
MR. BAILEY turned attention to page 4, line 8, and pointed out
that [with the adoption of Amendment 1], there is a burden of
overcoming the presumption by a preponderance of the evidence.
There is also a list of factors that allow the presumption to be
overcome, one of which is a diagnosed mental illness in the
victim as well as the language "or because of other
circumstances that affect the best interests of the child."
Therefore, he opined, everything the judge needs is specified
already.
Number 1019
CHAIR McGUIRE inquired as to why subsection (k) [on page 5,
lines 1-2] is necessary.
MR. BAILEY explained that subsection (k) is necessary because in
some cases there has been an assertion that women suffering from
posttraumatic stress disorder as a result of the abuse are
rendered incapable of safely or effectively parenting. However,
that disorder is treatable. He further explained, "We're trying
to avoid ... putting our cases into that 70 percent of contested
custody cases involving batterers where they fair well enough to
present a safety risk to their children."
REPRESENTATIVE GRUENBERG pointed out that since not many judges
[in Alaska] are family law practitioners, there are a number of
judges who don't have much experience in family law and thus
tend to read statutes very literally. Therefore, Representative
Gruenberg expressed concern that subsection (k) could be used as
an evidentiary rule to exclude evidence, which he didn't believe
is the intention. Representative Gruenberg said that he wanted
to be sure that [subsection (k)] isn't taken out of context and
misread. "I don't want to reward the batterer; that is not my
intent," he said.
CHAIR McGUIRE inquired as to Mr. Bailey's opinion of inserting
"sole" on page 5, line 2, such that it would read as follows:
"does not constitute the sole basis for denying custody to the
abused parent."
MR. BAILEY opined that such would be an excellent solution to
the problem.
Number 0845
CHAIR McGUIRE announced that the committee [had before it]
Amendment 3, as follows:
Page 5, line 2, after "constitute"
Delete "a"
Insert "the sole"
REPRESENTATIVE GARA said he wished there was no need for
subsection (k) because all the other provisions of the
legislation state the policy that domestic violence can't be
used against one parent to the advantage of the other parent
during a custody proceeding. By inserting the word "sole" [via
Amendment 3], the court is being allowed to weigh the victimized
parent's effects from the abuse more heavily than is probably
desired. "By using the word 'sole' you would then allow a court
that is on the fence as to which parent to grant custody to,
[to] use the fact that the victimized ... parent suffers effects
from the victimization as the thing that tips the scale and then
denies custody to that parent; I don't think you want to do
that," he said.
CHAIR McGUIRE remarked, "It's the problem."
REPRESENTATIVE GARA opined that in order to prevent the
victimization from benefiting the party engaging in the abuse,
it would be best to add the language ", provided the parent is
able to safely care for the child" at the end of subsection (k).
Therefore, the victimized parent would be awarded custody so
long as he/she is able to take care of the child. He reiterated
concern that use of the word "sole" would establish a situation
in which that factor would be used against the victimized
parent.
CHAIR McGUIRE remarked that she didn't support removing
subsection (k) in light of the statistics that specify that
about 70 percent of the batterers use that argument as a basis
for obtaining custody. She said she agrees with Representative
Gara and threw it out as a compromise by saying that though it
may not be the sole reason, it could be a reason. She opined,
however, that Mr. McCarty is correct that including language
specifying [the victimized parent] can't parent safely could say
to the batterer to beat up the other parent enough so that
he/she can't parent and thus the batterer would receive custody.
REPRESENTATIVE GRUENBERG pointed out that the remedy for someone
beating up someone is in the criminal sphere. If the intent is
to look at the best interest of the child, the child needs to be
placed with someone who can safely parent the child rather being
held as a reward for the innocent person. Perhaps the child
would have to go to a third party in a situation in which there
is a batterer and a victim who are unable to parent the child.
He informed the committee that Turner v. Panic (ph) says that to
give a child to a third party one must show that the parents
have abandoned the child, that the parents are unfit, or that
the welfare of the child clearly requires that a third party be
given custody of the child.
REPRESENTATIVE GRUENBERG turned attention back to [Amendment 2]
and suggested the inclusion of the following language: "unless
the court finds that the domestic violence renders the parent
unable to safely parent the child".
CHAIR McGUIRE opined that [this latest version of Amendment 2]
is probably the best compromise.
Number 0441
REPRESENTATIVE GRUENBERG re-offered Amendment 2, as follows:
Page 5, line 2, after "parent"
Insert "unless the court finds that the domestic
violence renders the parent unable to safely parent
the child"
Number 0432
CHAIR McGUIRE announced that Amendment 3 was withdrawn that and
Amendment 2 was [back before the committee]. She asked if there
were any objections to Amendment 2. There being none, Amendment
2 was adopted.
The committee took an at-ease from 4:20 p.m. to 4:21 p.m.
Number 0417
REPRESENTATIVE SAMUELS moved to report the proposed CS for HB
385, Version 23-LS1273\Q, Mischel, 2/27/04, as amended, out of
committee with individual recommendations and the accompanying
zero fiscal note. There being no objection, CSHB 385(JUD) was
reported from the House Judiciary Standing Committee.
HB 342 - INCREASE DRIVING UNDER INFLUENCE PENALTY
Number 0388
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 342, "An Act relating to driving while
intoxicated; and providing for an effective date." [Before the
committee was Version 23-LS1292\H, Luckhaupt, 2/23/04, which was
adopted as a work draft and amended on 2/27/04; left pending on
2/27/04 was a motion to adopt a third amendment to Conceptual
Amendment 2 - labeled 23-LS1292\D.1, Luckhaupt, 2/21/04 - which
had been amended twice on 2/27/04.]
CHAIR McGUIRE noted that new amendments were being distributed
to members.
Number 0340
The committee took an at-ease from 4:22 p.m. to 4:23 p.m.
REPRESENTATIVE GRUENBERG turned to Conceptual Amendment 2 [D.1],
as amended, which, prior to being amended, read:
Page 1, line 1:
Delete all material and insert:
""An Act relating to driving while under the
influence and to the issuance of limited drivers'
licenses; and providing for an effective date.""
Page 1, following line 2:
Insert a new bill section to read:
"* Section 1. AS 28.15.201(d) is amended to read:
(d) A court revoking a driver's license,
privilege to drive, or privilege to obtain a license
under AS 28.15.181(c), or the department when revoking
a driver's license, privilege to drive, or privilege
to obtain a license under AS 28.15.165(c), may grant
limited license privileges [FOR THE FINAL 60 DAYS
DURING WHICH THE LICENSE IS REVOKED] if
(1) the revocation was for a misdemeanor
conviction under AS 28.35.030(a) and not for a
violation of AS 28.35.032;
(2) the person has not been previously
convicted or, if the person has been previously
convicted, the court or the department requires the
person to use an ignition interlock device as
described in AS 12.55.102 during the period of the
limited license; in this paragraph, "previously
convicted" has the meaning given in AS 28.35.030 and
also includes convictions based on laws presuming that
the person was under the influence of intoxicating
liquor if there was 0.08 percent or more by weight of
alcohol in the person's blood;
(3) the court or the department determines
that the person's ability to earn a livelihood would
be severely impaired without a limited license;
(4) the court or the department determines
that a limitation under (a) of this section can be
placed on the license that will enable the person to
earn a livelihood without excessive danger to the
public; and
(5) the court or the department determines
that the person is enrolled in and is in compliance
with, or has successfully completed the alcoholism
screening, evaluation, referral, and program
requirements of the Department of Health and Social
Services under AS 28.35.030(h)."
Page 1, line 3:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Number 0332
REPRESENTATIVE GRUENBERG noted that one of the amendments that
was made to Conceptual Amendment 2 [D.1] at the bill's prior
hearing involved a title change to include ", ignition interlock
devices,".
CHAIR McGUIRE remarked that that title change would be
conceptual in order to allow the drafters to place the
aforementioned language in the most suitable place.
REPRESENTATIVE GRUENBERG noted that another amendment to
Conceptual Amendment 2 [D.1] that was adopted on 2/27/04
involved the inclusion of language in AS 28.15.201(d)(3) and (4)
that would allow a limited license to be granted for "compelling
health or safety reasons".
REPRESENTATIVE GRUENBERG went on to note that [these two
amendments] that had been made to Conceptual Amendment 2 [D.1]
on 2/27/04 had not been incorporated into the amendment labeled
23-LS1292\H.4, Luckhaupt, 3/1/04, which members now have and
which read:
Page 1, lines 1 - 2:
Delete all material and insert:
""An Act relating to driving while under the
influence, to alcohol-related offenses, and to the
issuance of limited drivers' licenses; and providing
for an effective date.""
Page 2, following line 23:
Insert a new bill section to read:
"* Sec. 2. AS 28.15.201(d) is amended to read:
(d) A court revoking a driver's license,
privilege to drive, or privilege to obtain a license
under AS 28.15.181(c), or the department when revoking
a driver's license, privilege to drive, or privilege
to obtain a license under AS 28.15.165(c), may grant
limited license privileges [FOR THE FINAL 60 DAYS
DURING WHICH THE LICENSE IS REVOKED] if
(1) the revocation was for a misdemeanor
conviction under AS 28.35.030(a) and not for a
violation of AS 28.35.032;
(2) the person (A) has not been previously
convicted and the court or department requires the
person to use an ignition interlock device as
described in AS 12.55.102 during the period of the
limited license if a provider for the device is
located within 100 miles of the residence or domicile
of the person; or, (B) has been previously convicted
and the court or the department requires the person to
use an ignition interlock device as described in
AS 12.55.102 during the period of the limited license;
in this paragraph, "previously convicted" has the
meaning given in AS 28.35.030 and also includes
convictions based on laws presuming that the person
was under the influence of intoxicating liquor if
there was 0.08 percent or more by weight of alcohol in
the person's blood;
(3) the court or the department determines
that the person's ability to earn a livelihood would
be severely impaired without a limited license;
(4) the court or the department determines
that a limitation under (a) of this section can be
placed on the license that will enable the person to
earn a livelihood without excessive danger to the
public; and
(5) the court or the department determines
that the person is enrolled in and is in compliance
with, or has successfully completed the alcoholism
screening, evaluation, referral, and program
requirements of the Department of Health and Social
Services under AS 28.35.030(h)."
Renumber the following bill sections accordingly.
Page 5, line 29, following "Act":
Insert ", except that references to prior
convictions include those occurring before the
effective date of this Act."
CHAIR McGUIRE suggested to Representative Gruenberg that he
withdraw [those two amendments] to Conceptual Amendment 2 [D.1]
and offer [them as new amendments] to the amendment labeled 23-
LS1292\H.4, Luckhaupt, 3/1/04, which was later referred to as a
Amendment 2 [H.4].
REPRESENTATIVE GRUENBERG offered his recollection that [those
amendments] to Conceptual Amendment 2 [D.1] had already been
adopted and he merely wanted [them] to be included in Amendment
2 [H.4]. He noted that the change regarding "compelling health
or safety reasons" would still go to AS 28.15.201(d)(3) and (4)
Number 0220
CHAIR McGUIRE moved that the committee rescind its action in
adopting the [amendments] to Conceptual Amendment 2 [D.1] for
the purpose of addressing new amendments to Amendment 2 [H.4].
There being no objection, the committee rescinded its action.
[Although no further discussion took place regarding adding, ",
ignition interlock devices," to the title, and no formal motion
was made to amend Amendment 2 [H.4] in this fashion, such a
change was incorporated into CSHB 342(JUD).]
Number 0150
REPRESENTATIVE GRUENBERG [made a motion to adopt] an amendment
to Amendment 2 [H.4] such that in AS 28.15.201(d)(3) and (4),
after the language pertaining to "livelihood", the words, "or
that there are other compelling health or safety reasons that
require the issuance of a limited license" would be added.
Number 0095
REPRESENTATIVE SAMUELS objected for the purpose of discussion.
He indicated that he was concerned with how far they would be
opening up the door for repeat offenders, and asked whether
health problem would be defined.
REPRESENTATIVE GRUENBERG noted that at the bill's prior hearing,
during discussion of Conceptual Amendment 2 [D.1], the issues
surrounding his current amendment to Amendment 2 [H.4] had
already been debated. He reminded members that at that prior
meeting, the proposed change now before the committee was
adopted to Conceptual Amendment 2 [D.1]; he was merely offering
the language again in the form of an amendment as a courtesy
because the committee now has before it Amendment 2 [H.4].
CHAIR McGUIRE concurred and recapped some of the debate from the
bill's prior hearing.
REPRESENTATIVE OGG suggested that perhaps Representative
Samuels's specific concerns with this language change were not
debated at the bill's prior hearing.
TAPE 04-32, SIDE A
Number 0001
REPRESENTATIVE GRUENBERG acknowledged that at the time of the
original debate on the language change now being considered, the
committee had not yet began its discussion regarding first time
offenders versus repeat offenders. He said he would not have a
problem if the committee would like to limit the application of
the language in the amendment to Amendment 2 [H.4] to just first
time offenders.
REPRESENTATIVE SAMUELS relayed that he did not want to allow
judges too much discretion to give repeat offenders limited
licenses.
CHAIR McGUIRE, in response to a question, clarified that the
committee was now considering whether to adopt an amendment to
Amendment 2 [H.4] regarding granting limited licenses for
compelling health or safety reasons. She asked that any
amendments to amendments be conceptual for the purpose of giving
the drafter the latitude of inserting them in the appropriate
locations.
REPRESENTATIVE GRUENBERG said he would consider limiting the
application of the amendment to Amendment 2 [H.4] to just first
time offenders to be a friendly amendment.
CHAIR McGUIRE ascertained that such a change to the [conceptual]
amendment to Amendment 2 [H.4] was acceptable to members; thus
the conceptual amendment to Amendment 2 [H.4] would apply only
to first time offenders.
Number 0181
REPRESENTATIVE SAMUELS removed his objection to the conceptual
amendment to Amendment 2 [H.4].
CHAIR McGUIRE, in response to a question, confirmed that
Amendment 1 to Version H of HB 342 involved the deletion of, "or
by the commissioner of administration" from page 2, line 20.
[Amendment 1 was adopted on 2/27/04.] She clarified that the
committee was now considering Amendment 2 [H.4] in lieu of
Conceptual Amendment 2 [D.1].
Number 0199
CHAIR McGUIRE relayed that the [conceptual] amendment to
Amendment 2 [H.4] was adopted.
REPRESENTATIVE OGG turned attention to proposed AS
28.15.201(d)(2)(B) - located in Amendment 2 [H.4], as amended -
which pertains to repeat offenders. He said he thinks there
ought to be a limitation on the number of previous convictions
one may have during a certain period of time and still qualify
for a limited license under this provision.
The committee took an at-ease from 4:35 p.m. to 4:36 p.m.
REPRESENTATIVE GRUENBERG observed that there are three criteria
in Amendment 2 [H.4], as amended, to consider: "Number one,
whether this is a first conviction; number two, whether there is
an ignition interlock on the vehicle; and number three, whether
the limited license is going to be allowed only for the last 60
days of the suspension." Under current law, there is no
provision for ignition interlocks, a limited license may only be
granted in instances of a first conviction, and a limited
license may only be granted during the final 60 days of a
revocation period. He noted that Amendment 2 [H.4], as amended,
removes the 60-day stipulation and requires a first time
offender to use an ignition interlock. He offered his belief
that Amendment 2 [H.4], as amended, should be altered to allow
someone without any prior convictions to get a limited license
during the final 60 days without having an ignition interlock.
CHAIR McGUIRE noted that under Amendment 2 [H.4], as amended, if
a person does not have any prior convictions and lives more than
100 miles from a provider of ignition interlock devices, he/she
does not have to have an ignition interlock in order to be
granted a limited license at anytime during the revocation
period.
REPRESENTATIVE GRUENBERG noted, however, that under Amendment 2
[H.4], as amended, if a person without previous convictions
lives within 100 miles of a ignition interlock provider, he/she
will have to have an ignition interlock in order to be granted a
limited license.
CHAIR McGUIRE offered her understanding that this aspect of
Amendment 2 [H.4], as amended, was a policy change supported by
the committee at the bill's last hearing; the policy change
being that "even [on] your first offense, if you lived within
100 miles of a provider of an interlock, we would prefer you to
use the interlock."
Number 0600
REPRESENTATIVE GRUENBERG remarked that he might have missed that
point during their discussion of Conceptual Amendment 2 [D.1].
He went on to say:
I would like to see us retain the current law on a
policy basis and for another reason also: because I
think there's a denial of equal protection. ... And I
suppose a court could say, "There's no denial of equal
protection because it's a rational basis: if you can
do it, ... the legislature wants you to do it." But
... my gut feeling is that it would not be that simple
by the time a court got through with it.
[Chair McGuire turned the gavel over to Representative Samuels.]
REPRESENTATIVE GRUENBERG offered a hypothetical example of
someone who lives on Kodiak Island with Homer having the nearest
ignition interlock device provider. Although Kodiak Island is
technically within 100 miles of Homer, it would be virtually
impossible to comply with this provision of Amendment 2 [H.4],
as amended, he remarked. Therefore, to have to draw a
geographical distinction based on just a compass radius could be
problematic.
REPRESENTATIVE GARA remarked that they would probably have to
change the language to "100 road miles" just to avoid that
circumstance.
REPRESENTATIVE SAMUELS agreed that that phrase ought to be
worked on. He remarked, however, that the underlying issue is
that they are changing the law regarding ignition interlock
devices such that it will be dependant on what an offender's
blood alcohol concentration [BAC] level is.
REPRESENTATIVE GRUENBERG relayed that his intent regarding his
discussion of the language in Amendment 2 [H.4], as amended, is
to focus on the issue of those offenders who don't have a BAC
level over .16.
REPRESENTATIVE SAMUELS remarked, however, that according his
understanding, the language in Amendment 2 [H.4], as amended,
won't apply to those that don't have a BAC level over .16.
Number 0766
CODY RICE, Staff to Representative Carl Gatto, Alaska State
Legislature, sponsor, offered his belief, on behalf of
Representative Gatto, that Representative Gruenberg is
attempting to address the issue of those individuals that are
not required to use an ignition interlock, for example, first
time offenders with a BAC level lower than .16. Currently, he
opined, those individuals would not be affected by Amendment 2
[H.4], as amended, and would thus be precluded from seeking a
limited license.
REPRESENTATIVE HOLM asked whether equal protection clauses apply
to privileges in the same way they do to rights.
REPRESENTATIVE GRUENBERG opined that they would apply to even a
privilege if the distinction is on a geographic basis that is
improperly drawn; he noted, however, that "it's not as strict a
standard if it's not a right."
REPRESENTATIVE HOLM pondered whether the issue is one of equal
protection or one of equal access.
REPRESENTATIVE GRUENBERG recalled in that a [U.S.] Supreme Court
case, Shapiro V. Thompson (ph), it was ruled that basing whether
or not one could obtain welfare payments on how long one lived
in a particular area was a violation of equal protection.
REPRESENTATIVE OGG remarked that the language in Amendment 2
[H.4], as amended, pertaining to multiple offenders appears to
be more lenient because there is no geographical distance
limitation. He opined that the language in Amendment 2 [H.4],
as amended, was put together wrong.
MR. RICE said that according to his understanding of Amendment 2
[H.4], as amended, the intention is to allow those offenders
that are not egregious offenders to pursue a limited license,
and that was why the 100-mile distinction was inserted into the
provision pertaining to first time offenders and not into the
provision pertaining to multiple offenders. Not having the 100-
mile distinction in the provision pertaining to multiple
offenders is intended to prevent a loophole that would allow
multiple offenders in rural areas to obtain a limited license
simply because they hadn't access to an ignition interlock
provider.
Number 1000
REPRESENTATIVE OGG noted that in the provision in Amendment 2
[H.4], as amended, pertaining to first time offenders, the
language in proposed AS 28.15.201(d)(2)(A), does not
specifically address those first time offenders that live more
than 100 miles from an ignition interlock provider.
REPRESENTATIVE GRUENBERG offered his belief that those first
time offenders are addressed by implication.
REPRESENTATIVE OGG opined that addressing them by implication is
not sufficient.
REPRESENTATIVE GRUENBERG posited that it is simply a matter of
drafting style.
REPRESENTATIVE OGG offered his belief that regardless of
drafting style, the language in Amendment 2 [H.4], as amended,
does not clearly state the intent.
[Representative Samuels returned the gavel to Chair McGuire.]
REPRESENTATIVE GRUENBERG offered that according to his
understanding of the drafting manual, the language in Amendment
2 [H.4], as amended, sufficiently outlines by implication the
intent towards first time offenders living further than 100
miles from an ignition interlock provider.
CHAIR McGUIRE opined that the language in Amendment 2 [H.4], as
amended, is clear and comports with the drafting manual. She
offered her interpretation of Amendment 2 [H.4], as amended:
"If this is your first offense, you can apply to get a [limited]
driver's license, but you have to use an interlock device if ...
a provider is within 100 miles." She again requested that any
amendments to Amendment 2 [H.4], as amended, be conceptual, and
suggested that the committee focus first on the issue of first
time offenders. She noted that Representative Gruenberg has
expressed concern with how first time offenders will be treated
under Amendment 2 [H.4], as amended, and that current law says
that first time offenders may get a [limited] license, without
having to have an interlock device, if they meet certain
requirements. In contrast, under Amendment 2 [H.4], as amended,
a first time offender must have an interlock device if a
provider is located within 100 miles. She suggested, as a way
of keeping the process moving, that members in opposition to
that provision offer a conceptual amendment to Amendment 2
[H.4], as amended, to change the language back to how first time
offenders are treated currently.
Number 1227
REPRESENTATIVE GRUENBERG made a motion to adopt a second
amendment, which would be conceptual, to Amendment 2 [H.4], as
amended, "To allow a first [time] offender to be given a limited
license - as we've stated, for livelihood or compelling health
and safety reasons - without an ignition interlock only during
the last 60 days the license is revoked; in other words, to keep
that as an option as it is in current law."
REPRESENTATIVE GRUENBERG, in response to a question, offered his
understanding that the second amendment to Amendment 2 [H.4], as
amended, when considered in terms of how it will fit into
Version H - specifically page 5, line 9 - would only apply to
first time offenders who have a BAC limit below .16.
REPRESENTATIVE GARA said he thinks Representative Gruenberg's
interpretation is incorrect. He elaborated:
These are two different circumstances. The main part
of the bill that Representative Gatto brought to us
applies after your conviction, after you're sentenced,
after your license is returned to you. After your
license is returned to you, if you [have a BAC level
that is] high, you have to use an interlock device.
[Amendment 2 H.4, as amended,] applies before the
period [that] your license revocation expires - this
applies if you want your license back early - and so
this, therefore, applies to everybody regardless of
[their BAC level].
This limited license provision ... says the court is
saying to you, "I'm going to give you your license
back in advance of when you would otherwise get it
back" for work-related reasons or whatever. The
[provision in the bill that is based on someone's BAC
level] only applies after you get your license back
under the normal schedule. [Amendment 2 H.4, as
amended] is the early-license provision, so this
applies to everybody. And a court, in its discretion,
could deny you the early limited license because [your
BAC level] is .30, ... but the [BAC] levels don't
apply to this early license.
CHAIR McGUIRE noted that the provisions encompassed in Amendment
2 [H.4], as amended, do contain sidebars: for example, before
the court can grant a limited license, it has to determine that
the person won't pose excessive danger to the public; that the
license revocation has to be for a misdemeanor conviction; and
that the license revocation cannot be for a violation of AS
28.35.032 - refusal to submit to chemical test.
Number 1422
CHAIR McGUIRE asked whether there were any objections to the
second amendment to Amendment 2 [H.4], as amended. There being
none, the second amendment to Amendment 2 [H.4], as amended, was
adopted.
CHAIR McGUIRE suggested that the committee next focus on the
provisions of [Amendment 2 H.4], as amended, that address
offenders with previous convictions. She offered her
understanding that as long as an offender with previous
convictions meets all the criteria laid out in proposed AS
28.15.201.(d), then he/she may be granted a limited license but
only if he/she gets an ignition interlock device.
[Following was a brief discussion of the amendments made to
Amendment 2 H.4 thus far and the changes that Amendment 2 H.4,
as amended, will have to current law.]
CHAIR McGUIRE suggested that they remove all reference to the
100-mile stipulation, surmising that doing so would give the
courts the discretion of whether or not to require first time
offenders to get an ignition interlock in order to get a limited
license, but would require that those with prior convictions do
have to get an ignition interlock device.
REPRESENTATIVE OGG remarked that those with prior convictions
appear to be able to gain the same benefits as first time
offenders. He opined that there ought to be "a larger step" for
those with previous convictions.
Number 1871
REPRESENTATIVE GARA offered that the provisions in AS
28.15.201(d)(2), located in Amendment 2 [H.4], as amended, could
be altered to work as follows:
If we want to delete the 100-mile [stipulation], we
say, "If you have not been previously convicted," for
the person whose first conviction this is, "in the
final 60 days the court has the discretion to give a
[limited license] ... without an interlock device."
That was Representative Gruenberg's [second] amendment
to the amendment. The court also has the discretion
to give it to you earlier if -- and the court may
order that you have an interlock device, and we're
saying the court "may" order that you have an
interlock device because you might live in a place
where one's not available and we're going to leave it
to [the] court to say whether or not you need one.
But then, ... for the people with the prior
convictions, you have to have an interlock device, and
if one's not available, it's just tough, we just don't
trust you well enough to let you drive around without
an interlock device.
REPRESENTATIVE ANDERSON indicated that such would be
satisfactory to him.
REPRESENTATIVE GARA noted again that the courts would then still
have the discretion to grant a limited license to a first time
offender before the last 60 days of the revocation period
without requiring an ignition interlock device. In contrast, a
person with previous convictions might be granted a limited
license before the last 60 days of a revocation period, but only
if he/she gets an ignition interlock device.
REPRESENTATIVE OGG suggested also allowing someone with previous
convictions to get a limited license without an ignition
interlock device but only during the final 60 days of the
revocation period.
REPRESENTATIVE ANDERSON opined that doing so would defeat the
purpose [of Amendment 2 H.4, as amended] and indicated that he
would be opposed to such a change to Amendment 2 [H.4], as
amended, because ignition interlock devices will afford the
public an extra measure of safety from those who have been
previously convicted.
REPRESENTATIVE OGG opined that those with previous convictions
should have some period of time wherein they cannot drive.
REPRESENTATIVE ANDERSON asked Chair McGuire for her
interpretation of Representative Gara's suggested changes to
Amendment 2 [H.4], as amended.
Number 2061
CHAIR McGUIRE said she agrees with Representative Gara's
suggested changes: It would incorporate Representative
Gruenberg's second amendment to Amendment 2 [H.4], as amended;
it would provide a second tier for first time offenders such
that the court would have the discretion to grant a limited
license and may or may not require the use of an ignition
interlock device; and it would allow the court, if it determines
that all other requirements of AS 28.15.201(d) are met, to grant
a limited license to those with previous convictions as long as
an ignition interlock device is used.
Number 2113
REPRESENTATIVE GRUENBERG turned attention to the phrase, "as
described in AS 12.55.102", which is used twice in Amendment 2
[H.4], as amended. He made a motion to amend Amendment 2 [H.4],
as amended, such that, "as described in AS 12.55.102" is
deleted. He then withdrew that motion.
Number 2260
CHAIR McGUIRE made a motion to adopt a third amendment, which
would be conceptual, to Amendment 2 [H.4], as amended, such that
Representative Gara's suggestion be incorporated: In addition
to including Representative Gruenberg's second amendment to
Amendment 2 [H.4], as amended, it would provide a second tier
for first time offenders such that the court would have the
discretion to grant a limited license before the last 60 days of
a revocation period and may or may not require the use of an
ignition interlock device, and it would allow the court, if it
determines that all other requirements of AS 28.15.201(d) are
met, to grant a limited license to those with previous
convictions as long as an ignition interlock device is used.
She indicated that this third amendment to Amendment 2 [H.4], as
amended, would be applicable to proposed AS 28.15.201(d)(2).
Number 2278
REPRESENTATIVE OGG objected.
[This third amendment to Amendment 2 H.4, as amended, was
treated as adopted, and the issue of whether to adopt Amendment
2 H.4, as amended, became the subject of the following roll call
vote.]
Number 2290
A roll call vote was taken. Representatives Gara, Gruenberg,
Anderson, and McGuire voted in favor of Amendment 2 [H.4], as
amended. Representatives Samuels, Ogg, and Holm voted against
it. Therefore, Amendment 2 [H.4], as amended, was adopted by a
vote of 4-3.
Number 2350
REPRESENTATIVE GARA made a motion to adopt Amendment 3, which
read [original punctuation provided]:
Page 5 line 14-15, after "the person's breath,"
Delete: "the court shall double the fine imposed
under (b)(1) or (n)(1) of this section"
Insert: "the court shall increase the fine
imposed under (b)(1) or (n)(1) of this section by the
lesser of one-third or $500"
Page 5 line 21-22, after ""the person's breath,"
Delete: "the court shall triple the fine imposed
under (b)(1) or (n)(1) of this section"
Insert: "the court shall increase the fine
imposed under (b)(1) or (n)(1) of this section by the
lesser of one-half or $1,000"
Number 2354
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GARA said that Amendment 3 addresses the
provisions in HB 342 related to doubling and tripling fines. He
outlined the changes which have recently occurred to the current
schedule of fines.
TAPE 04-32, SIDE B
Number 2393
REPRESENTATIVE GARA went on to detail some of the fines
currently in place. Given that the amount someone may be fined
varies depending upon aggravators, he said he is having
difficulty determining just how much a fine might ultimately
wind up being, since the language in HB 342 merely talks about
doubling and tripling fines and would therefore be requiring the
court to double or triple an indeterminate amount. He said he
thinks it improper to double and in some cases triple the fines
that are currently in place given that they were only just
recently raised to their present levels, which, he opined, are
very high. He offered his belief that the courts are already
providing for higher fines in cases where there are high BAC
levels, and characterized Amendment 3 as a compromise that will
provide for a modest increase in fines for such cases. He
concluded by recapping the language in Amendment 3, and by
relaying that doubling or in some cases tripling a $50,000 fine,
for example, seems too extreme to him.
MR. RICE surmised that the question of whether to adopt
Amendment 3 comes down to a policy call. He opined, however,
that the courts would assign a $50,000 fine and triple it only
in cases where they realistically thought it could be collected.
"It seems fair to assume that the judges would be aware of the
fact that the fines that they were assigning could be tripled,
and would possibly reduce them as such, but they could not
reduce them below the minimums," he added.
REPRESENTATIVE HOLM said:
I'm curious as to why we're doing this, and I think
Representative Gara makes a good point. Are we trying
to penalize? Are we trying to keep people from doing
these egregious acts? Are we trying to maybe just get
money for the state? If the reason is to change the
fine based upon the ability to pay, I think it's bad
public policy because the act has no relationship, in
my opinion, [with] whether or not you have an ability
to pay .... If you perform an egregious act against
society, [the penalty] should have nothing to do with
whether you're rich, poor, or indifferent.
REPRESENTATIVE HOLM indicated that he does not have any problem
with raising the fines as a punitive measure, as a way of
telling people that if they are going to act in a certain
fashion then certain penalties will attach, but he does not want
to give the court the discretion to say how much a fine will be
based on its perception of whether someone has any assets that
can be confiscated.
MR. RICE said he was merely trying to allay members' concerns
that doubling or tripling fines might pose too large a burden on
working families, adding that he believes that the courts will
take that sort of thing into account.
REPRESENTATIVE SAMUELS said he feels that having a BAC level of
.08 and having a BAC level of .30 are completely different
crimes, and opined that the fines ought to be significantly
higher for those individuals who have a higher BAC level because
they pose a greater danger.
REPRESENTATIVE OGG suggested that the language on page 5, lines
14-15 and 21-22, after "breath," ought to be changed to read,
"the minimum fine imposed under (b)(1) or (n)(1) of this section
shall be doubled", and, "the minimum fine imposed under (b)(1)
or (n)(1) of this section shall be tripled", respectively. He
opined that doing so would eliminate any ambiguity regarding the
amount of the fines that are to be doubled or tripled, and would
still allow the courts the discretion to impose higher fines.
Number 2062
REPRESENTATIVE OGG made a motion to adopt the forgoing as a
conceptual amendment.
CHAIR McGUIRE announced that that motion is out of order because
the committee still has before it the question of whether to
adopt Amendment 3.
REPRESENTATIVE GARA mentioned that his concern is not about the
burden on working families so much as it is about coming up with
a fine that reflects the crime, which is [DUI]. A potential
$150,000 fine for a [DUI] is just way out of line, he opined,
adding that his main concern is whether doubling and tripling
fines is [reasonable].
Number 2034
A roll call vote was taken. Representatives Gara, Gruenberg,
Anderson, Holm, and McGuire voted in favor of Amendment 3.
Representatives Ogg and Samuels voted against it. Therefore,
Amendment 3 was adopted by a vote of 5-2.
REPRESENTATIVE GRUENBERG surmised that it will take everyone a
certain amount of time to conform to the changes encompassed in
HB 342, and suggested that the bill ought to have a different
effective date.
Number 1939
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 4,
which read:
Page 5, line 30:
Delete "July 1, 2004"
Insert "January 1, 2005"
Number 1931
CHAIR McGUIRE objected for the purpose of discussion.
MR. RICE said that Amendment 4 mirrors an amendment provided by
the sponsor.
Number 1910
CHAIR McGUIRE removed her objection and asked whether there were
any further objections to Amendment 4. There being none,
Amendment 4 was adopted.
Number 1908
REPRESENTATIVE OGG moved to report the proposed CS for HB 342,
Version 23-LS1292\H, Luckhaupt, 2/23/04, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 342(JUD) was
reported from the House Judiciary Standing Committee.
ADJOURNMENT
Number 1883
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:30 p.m.
| Document Name | Date/Time | Subjects |
|---|